United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 5, 2008 Decided March 6, 2009
No. 08-5092
CHARLES BLAINE JONES,
APPELLANT
v.
BEN S. BERNANKE, CHAIRMAN, BOARD OF GOVERNORS,
FEDERAL RESERVE SYSTEM,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:04-cv-01696)
Michael G. Kane argued the cause for appellant. With
him on the briefs was David R. Cashdan.
John L. Kuray, Senior Counsel, Board of Governors of
the Federal Reserve System, argued the cause for appellee.
With him on the brief were Richard M. Ashton, Deputy
General Counsel, and Katherine H. Wheatley, Associate
General Counsel. R. Craig Lawrence, Assistant U.S.
Attorney, entered an appearance.
Before: SENTELLE, Chief Judge, TATEL, Circuit Judge,
and WILLIAMS, Senior Circuit Judge.
2
Opinion for the Court filed by Circuit Judge TATEL.
TATEL, Circuit Judge: In this employment discrimination
case, the district court, finding that the employee had failed to
make out a prima facie case of either discrimination or
retaliation, granted summary judgment to the employer. We
affirm as to the discrimination claims on the alternative
ground that they were not properly before the district court.
But we reverse and remand as to the retaliation claims. Given
that the employer asserted its legitimate, non-retaliatory
explanation, our precedent required the district court to
abandon its focus on perceived deficiencies in the prima facie
case and to proceed instead to the only issue properly before
it, i.e., the question of retaliation vel non.
I.
After working for the Board of Governors of the Federal
Reserve System for seven years and earning two promotions
during that period, appellant Charles Blaine Jones sought a
third promotion to a managerial position in March 1998. At
that time Jones was 49 years old. Jones’s second-level
supervisor, Michael Martinson, interviewed several
candidates including Jones and selected Heidi Richards, a 34-
year-old woman. Believing Richards to be less qualified for
the position than he, Jones complained to Martinson about her
selection. In response Martinson assured Jones that he would
soon be promoted to another position. But receiving no
promotion despite Martinson’s and other supervisors’
repeated assurances, Jones filed an informal complaint with
the Board’s EEO office in November 1999 and a formal
complaint in January 2000. In his complaint Jones alleged
that when the Board denied him promotion to the managerial
position in favor of a younger woman, it discriminated against
him on the basis of gender in violation of Title VII of the
Civil Rights Act of 1964 as amended, 42 U.S.C. § 2000e et
3
seq., and age in violation of the Age Discrimination in
Employment Act (ADEA), 29 U.S.C. § 633a. During its
investigation, the EEO office obtained affidavits from
Martinson and other witnesses, including Richards who had
by then become Jones’s first-level supervisor. On September
22, 2000, at the conclusion of the investigation, Jones sent a
letter to the Equal Employment Opportunity Commission
(EEOC) requesting a hearing before an administrative law
judge. Central to one of the issues before us, he sent a copy
of that request to the Board’s EEO office.
Approximately one month later, on October 25, Jones
received from Richards a draft of his annual performance
evaluation for the period September 1999 to October 2000.
Although prior evaluations had rated Jones’s overall
performance as either “outstanding” or “exceptional,” the
2000 evaluation reduced his rating to “commendable”—the
third of five possible categories and just one level above
“marginal.” Signed by both Richards and Martinson, the
evaluation explained (among other things) that Jones had
failed to complete two assigned projects. Jones’s supervisors
continued to rate his performance as only “commendable” in
his 2001, 2002, and 2003 evaluations. Believing these
evaluations misrepresented his actual performance, Jones
amended his administrative complaint to allege that his
supervisors retaliated against him for his complaints of age
and gender discrimination by downgrading his annual
performance ratings.
The EEOC administrative judge dismissed Jones’s
discrimination claims for untimely counselor contact. As to
the retaliation claims, the administrative judge found
insufficient evidence to question the Board’s explanation that
the 2000–2003 evaluations reflected honest assessments of
Jones’s performance and so granted summary judgment to the
4
Board. The Board subsequently adopted the administrative
judge’s recommendations, dismissed Jones’s complaint, and
notified him that he had ninety days from receipt of the
decision to file a civil action in district court should he choose
to do so. See 42 U.S.C. § 2000e-16(c) (setting forth ninety-
day filing requirement); Price v. Bernanke, 470 F.3d 384, 389
(D.C. Cir. 2006) (applying Title VII’s ninety-day requirement
to ADEA claims).
Jones then filed a timely complaint in the United States
District Court for the District of Columbia, alleging that the
Board had retaliated against him for his complaints of gender
and age discrimination in violation of Title VII and the
ADEA. The Board moved to dismiss and for summary
judgment. Jones opposed the motion and moved for
discovery under Federal Rule of Civil Procedure 56(f). While
those motions were pending and nearly a year after the filing
of the original complaint, Jones moved to amend his
complaint to add the Title VII and ADEA discrimination
claims based on his non-promotion. Opposing the motion, the
Board argued that the discrimination claims were untimely
because Jones had failed to bring them within ninety days of
receiving the notice of final agency action.
Without passing on Jones’s Rule 56(f) motion, the district
court granted in part and denied in part the Board’s motion for
summary judgment. See Jones v. Greenspan, 402 F. Supp. 2d
294, 303 (D.D.C. 2005). Applying the McDonnell Douglas
burden-shifting framework, see McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973), the district court concluded that
Jones had satisfied his prima facie burden for his retaliation
claims arising from the 2000 evaluation. Jones, 402 F. Supp.
2d at 301–02. The district court also concluded that Jones had
offered sufficient evidence for a reasonable jury to infer that
the evaluation was retaliatory rather than an honest
5
assessment of Jones’s performance. Id. As to the 2001–2003
evaluations, however, the court ruled that because Jones had
demonstrated no temporal proximity between his protected
activity and the adverse evaluations during those years, he
failed to satisfy his prima facie burden. Id. at 302–03. Thus,
although the court denied the Board’s summary judgment
motion on Jones’s retaliation claims arising from his 2000
evaluation, it granted the motion as to the three later
evaluations. Id. at 303.
Next the district court granted Jones’s motion to amend
the complaint, allowing him to add his gender and age
discrimination claims to the lawsuit. Jones v. Greenspan, 445
F. Supp. 2d 53, 58 (D.D.C. 2006). In response the Board filed
an answer to the amended complaint and moved to dismiss
the new claims or, alternatively, for summary judgment.
Jones opposed the motion, again seeking Rule 56(f)
discovery. Denying discovery, the district court granted the
Board’s motion for summary judgment, finding that Jones had
failed to establish a prima facie case of discrimination. Jones
v. Bernanke, 493 F. Supp. 2d 18, 23 (D.D.C. 2007).
Finally the district court revisited its earlier denial of
summary judgment on the retaliation claims arising from the
2000 evaluation, concluding this time that Jones had in fact
failed to establish a prima facie case of retaliation. Jones v.
Bernanke, 538 F. Supp. 2d 53, 56 (D.D.C. 2008). The court
explained that its original denial of summary judgment “was
at least partially based on the incorrect assumption that the
plaintiff proved its prima facie case,” id. at 64—an error the
court explained it made because it “overlooked [Jones]’s
inability to establish that his supervisors had knowledge of the
protected activity,” id. at 56. Accordingly, the court granted
the Board’s Rule 59(e) motion to alter or amend the judgment
and “dismiss[ed]” this claim as well. Id. at 64.
6
Jones now appeals, challenging both the denial of
discovery and the grant of summary judgment on his
discrimination and retaliation claims. We review the denial of
a Rule 56(f) motion for abuse of discretion. Dunning v.
Quander, 508 F.3d 8, 9 (D.C. Cir. 2007). We review the
district court’s grant of summary judgment de novo and may
affirm only if, viewing the evidence in the light most
favorable to Jones and giving him the benefit of all
permissible inferences, we conclude that no reasonable jury
could reach a verdict in his favor. Carter v. George
Washington Univ., 387 F.3d 872, 878 (D.C. Cir. 2004). And
“because we review the district court’s judgment, not its
reasoning, we may affirm on any ground properly raised.”
EEOC v. Aramark Corp., 208 F.3d 266, 268 (D.C. Cir. 2000).
II.
We begin with Jones’s argument that the district court
erred by granting the Board summary judgment on his
discrimination claims and denying him Rule 56(f) discovery
in the process. According to the Board, we needn’t address
either issue, as Jones’s discrimination claims were not
properly before the district court in the first place. We agree.
Nearly a year after Jones sued the Board for retaliation,
he moved to amend his complaint to add the underlying
discrimination claims. The Board opposed the amendment,
arguing that the discrimination claims were untimely because
Jones had failed to bring them within the required ninety-day
period. See § 2000e-16(c); Price, 470 F.3d at 389. The
district court disagreed, holding that “[b]ecause the amended
complaint builds on previously alleged facts and because the
defendant had notice of the discrimination claims, the
amended complaint relates back to the original complaint.”
Jones, 445 F. Supp. 2d at 57 (applying Federal Rule of Civil
Procedure 15(c)).
7
Although Federal Rule of Civil Procedure 15(a) permits
amendments to the pleadings “when justice so requires,” an
amendment adding a new ground for relief to the complaint
must contend with the applicable statute of limitations. See
United States v. Hicks, 283 F.3d 380, 386–87 (D.C. Cir. 2002)
(explaining that statute of limitations problems might “beset”
Rule 15(a) amendments). In limited circumstances, Rule
15(c) saves an otherwise untimely amendment by deeming it
to “relate back” to the timely-filed claims the plaintiff alleged
in the original complaint. Specifically, Rule 15(c)(1)(B)
provides that an amendment “relates back” to the date of the
original pleading if the “amendment asserts a claim . . . that
arose out of the conduct, transaction, or occurrence set out—
or attempted to be set out—in the original pleading.”
Interpreting this language, the Supreme Court recently
explained that relation back is improper when the amended
claim “asserts a new ground for relief supported by facts that
differ in both time and type from those the original pleading
set forth.” Mayle v. Felix, 545 U.S. 644, 650 (2005). We
have likewise explained that an amendment that “attempts to
introduce a new legal theory based on facts different from
those underlying the timely claims” does not relate back.
Hicks, 283 F.3d at 388. Indeed, even an amendment that
shares “some elements and some facts in common” with the
original claim does not relate back if its effect is “to fault [the
defendants] for conduct different from that identified in the
original complaint.” Meijer, Inc. v. Biovail Corp., 533 F.3d
857, 866 (D.C. Cir. 2008). Thus, “[t]he underlying question
is whether the original complaint adequately notified the
defendants of the basis for liability the plaintiffs would later
advance in the amended complaint.” Id.
In this case, because the facts supporting the amended
claims for discrimination “differ in both time and type” from
those set forth in Jones’s original complaint, Mayle, 545 U.S.
8
at 650, the amended claims plainly fault the Board “for
conduct different from that identified in the original
complaint,” Meijer, 533 F.3d at 866. Although an employee
may allege both discrimination and retaliation based on the
same incident, Jones has not done so. Instead he has alleged
that the Board initially discriminated against him when it
denied him a promotion, and then—some 32 months later, at
least—retaliated against him when it downgraded his
evaluations in reaction to his discrimination complaints.
Indeed, the original complaint nowhere even mentions the
Board’s 1998 selection of Richards for the managerial
position—the factual basis for Jones’s discrimination
claims—but instead recounts only Jones’s subsequent
complaints of discrimination. Specifically, paragraph 9 of the
original complaint says only that:
In November 1999, Mr. Jones filed a
complaint with the Federal Reserve’s EEO
Office. The complaint, and subsequent
amendments to it, raised claims of age
discrimination, gender discrimination, and
retaliation. The complaint specifically named
Mr. Michael Martinson, Mr. Jones’ immediate
supervisor at the time, as one of the primary
wrongdoers.
Compl. ¶ 9. Although this paragraph alludes to Jones’s
discrimination claims, it sets forth no facts that would support
them. Indeed, the facts the complaint does recite—Jones’s
filing of a 1999 administrative complaint, his receipt of
“inaccurate[]” performance evaluations in following years,
and the effect those ratings had on his salary and career, see
id. ¶¶ 10–11—differ markedly “in both time and type” from
those that would. See Mayle, 545 U.S. at 650.
9
The district court thought it relevant that Jones’s notice of
intent to sue, which Jones filed after receiving the notice of
final agency action and before filing his civil complaint,
informed the Board that he planned to bring his
discrimination claims in the civil suit. Under our precedent,
however, it is the original complaint, not some other earlier
filing or document, that must give the defendant notice of the
amended claim. See Meijer, 533 F.3d at 866. Indeed, if
anything, Jones’s inclusion of his discrimination claims in the
notice of intent to sue makes their absence from the original
complaint all the more conspicuous. Rather than informing
the Board “of the basis for liability [that Jones] would later
advance in the amended complaint,” id., the original
complaint effectively notified the Board that Jones was
abandoning any attempt to hold it liable for failing to promote
him.
In sum, given that Jones’s discrimination claims fault the
Board for conduct identified nowhere in the original
complaint, they cannot relate back under Rule 15(c). And
because Jones failed to bring his discrimination claims within
ninety days of receiving notice of final agency action and
because he nowhere argues that the claims are otherwise
timely, we agree with the Board that the district court should
have dismissed them.
Jones believes that two procedural problems bar us from
affirming on this ground. He is mistaken.
First, Jones claims that the Board’s failure to appeal the
district court’s order granting the motion to amend precludes
this “stealth appeal” of the district court’s determination that
the claims were timely under Rule 15(c). Appellant’s Reply
Br. 3. But a party that prevails entirely in the district court—
like the Board here—needn’t cross-appeal an adverse
10
interlocutory order to urge the rejected argument as an
alternative ground for affirming the final judgment. See Singh
v. George Washington Univ. Sch. of Med. & Health Scis., 508
F.3d 1097, 1099–1100 (D.C. Cir. 2007) (cross-appeal
unnecessary when the appellee seeks “no change in the final
judgment in its favor” but instead only seeks “affirmance of
the judgment, either on the grounds of the district court’s
latest opinion or on the basis of arguments that the district
court rejected in various interlocutory rulings”). In fact, we
encourage such parties not to cross-appeal. See Crocker v.
Piedmont Aviation, Inc., 49 F.3d 735, 741 (D.C. Cir. 1995)
(“Cross-appeals for the sole purpose of making an argument
in support of the judgment are worse than unnecessary.”
(quoting Jordan v. Duff & Phelps, Inc., 815 F.2d 429, 439
(7th Cir. 1987))).
Second, Jones argues that the Board’s statute of
limitations defense cannot sustain the judgment because the
Board failed to present it to the district court as a ground for
summary judgment. In support, Jones relies on Marymount
Hospital, Inc. v. Shalala, 19 F.3d 658 (D.C. Cir. 1994), but
that case only stands for the unremarkable proposition that an
argument never made below is waived on appeal—not the
very different proposition that an argument made, rejected,
and unrenewed in a later summary judgment motion provides
no grounds for affirmance. In reality, we may affirm a
judgment on any ground the record supports, Wilburn v.
Robinson, 480 F.3d 1140, 1148–49 (D.C. Cir. 2007), and that
the opposing party had a “fair opportunity” to address, Briggs
v. Wash. Metro. Area Transit Auth., 481 F.3d 839, 843 (D.C.
Cir. 2007) (internal quotation marks omitted). Here not only
did the Board raise its statute of limitations defense in its
opposition to Jones’s motion to amend the complaint, as Jones
concedes, see Appellant’s Reply Br. 2, but he responded in
his reply brief, see Pl.’s Reply to Def.’s Opp. to Mot. to
11
Amend 2–5. Moreover, contrary to Jones’s argument, the
Board did not abandon its defense by failing to raise it in its
summary judgment motion. On the very day the Board filed
that motion, it asserted the defense in its answer to Jones’s
amended complaint, see Answer to Am. Compl. 4, and a
defendant does not abandon an affirmative defense set forth in
the answer simply by omitting it from a motion for summary
judgment, Daingerfield Island Protective Soc’y v. Babbitt, 40
F.3d 442, 445 (D.C. Cir. 1994). Nor do we agree with Jones
that he suffered prejudice because the Board chose to forgo
rehashing this argument at the summary judgment stage. To
the contrary, we can hardly imagine a less prejudicial
situation for Jones given that he not only argued the statute of
limitations issue in the district court but prevailed.
III.
This brings us to the district court’s grant of summary
judgment to the Board on Jones’s retaliation claims.
Jones first argues that the district court abused its
discretion in failing to rule on his related Rule 56(f) motion
before granting summary judgment to the Board on his
retaliation claims. This argument needn’t detain us given that
Jones has offered no legal analysis in support of it. Although
Jones did provide sufficient analysis with respect to his
separate Rule 56(f) motion related to the discrimination
claims, that motion is distinct from this one, as are the issues
underlying it. Thus, because Jones neither cites nor discusses
any relevant case law to support his argument regarding his
Rule 56(f) request for discovery on his retaliation claims, we
consider the argument waived. See Ry. Labor Executives’
Ass’n v. U.S.R.R. Ret. Bd., 749 F.2d 856, 859 n.6 (D.C. Cir.
1984) (declining to decide issue “on the basis of briefing
which consisted of only three sentences . . . and no discussion
of the . . . relevant case law”).
12
Before moving on to the merits of Jones’s retaliation
claims, we pause for a refresher on the basics. Both Title VII
and the ADEA prohibit the federal government from
retaliating against employees who complain of employment
discrimination. Montgomery v. Chao, 546 F.3d 703, 706
(D.C. Cir. 2008) (Title VII); Gomez-Perez v. Potter, 128 S.
Ct. 1931, 1943 (2008) (ADEA). Whether brought under Title
VII or the ADEA, retaliation claims based on circumstantial
evidence—like Jones’s—trigger the familiar burden-shifting
framework of McDonnell Douglas. Carter, 387 F.3d at 878.
Under that framework, a plaintiff must first establish a prima
facie case of retaliation by showing (1) that he engaged in
statutorily protected activity; (2) that he suffered a materially
adverse action by his employer; and (3) that a causal link
connects the two. Wiley v. Glassman, 511 F.3d 151, 155
(D.C. Cir. 2007). If the plaintiff establishes a prima facie
case, the burden shifts to the employer to produce a
“‘legitimate, nondiscriminatory reason’” for its actions. Id.
(quoting Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248,
253 (1981)). If the employer does so, “the burden-shifting
framework disappears, and a court reviewing summary
judgment looks to whether a reasonable jury could infer . . .
retaliation from all the evidence,” which includes not only the
prima facie case but also the evidence the plaintiff offers to
“attack the employer’s proffered explanation for its action”
and other evidence of retaliation. Carter, 387 F.3d at 878
(internal quotation marks omitted).
With these fundamental principles in mind, we follow the
district court’s lead, considering first the retaliation claims
arising from the 2000 evaluation and then the claims arising
from the 2001–2003 evaluations.
13
2000 Evaluation
Recall that although the district court originally denied
summary judgment on the retaliation claims arising from the
2000 evaluation, it subsequently granted the Board’s Rule
59(e) motion to alter or amend the judgment because Jones
had failed to “prove[] [his] prima facie case.” Jones, 538 F.
Supp. 2d at 64. Previously the district court reached just the
opposite conclusion. Relying on the established principle that
temporal proximity between protected EEO activity and
adverse action can support an inference of causation when the
two events are “‘very close’” in time, Woodruff v. Peters, 482
F.3d 521, 529 (D.C. Cir. 2007) (quoting Clark County Sch.
Dist. v. Breeden, 532 U.S. 268, 273–74 (2001)), the district
court originally concluded that Jones satisfied his prima facie
burden because approximately one month separated his
September 2000 request for a hearing from the adverse 2000
evaluation. But reconsidering that decision, the court ruled
that Jones had not satisfied his prima facie burden because he
“failed to establish that his supervisors had knowledge of” his
September 2000 request for a hearing. Jones, 538 F. Supp. 2d
at 64. Although a denial of summary judgment is
interlocutory in nature and therefore not a proper basis for a
Rule 59(e) motion, see Fed. R. Civ. P. 54(a) (“‘Judgment’ as
used in these rules includes a decree and any order from
which an appeal lies.”), we view the district court’s ultimate
“dismiss[al]” of the retaliation claims arising from the 2000
evaluation, Jones, 538 F. Supp. 2d at 64, as equivalent to a
permissible reconsideration of its original denial of summary
judgment, see Langevine v. District of Columbia, 106 F.3d
1018, 1023 (D.C. Cir. 1997) (“Interlocutory orders are not
subject to the law of the case doctrine and may always be
reconsidered prior to final judgment.”).
On appeal Jones argues that he satisfied his prima facie
burden by demonstrating that the Board had knowledge of his
14
September 2000 request for a hearing and that whether his
supervisors themselves had such knowledge was a question of
fact for the jury. At this stage of the litigation, however,
asking whether Jones satisfied his prima facie burden is an
unnecessary and improper “sideshow.” Brady v. Office of
Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008). The
Supreme Court long ago held in United States Postal Service
Board of Governors v. Aikens that once the employer asserts a
legitimate, nondiscriminatory reason for its actions, it “has
done everything that would be required . . . if the plaintiff had
properly made out a prima facie case,” so “whether the
plaintiff really did so is no longer relevant.” 460 U.S. 711,
715 (1983). At this point, the Court explained, the only
question is the “ultimate factual issue in the case”—
“discrimination vel non.” Id. at 714–15. We have repeatedly
reiterated this principle. See, e.g., George v. Leavitt, 407 F.3d
405, 411–13 (D.C. Cir. 2005) (doing so when the defendant
articulated its legitimate reasons for the contested action “as
part of the parties’ cross-motions for summary judgment”).
Indeed, in Brady v. Office of Sergeant at Arms we emphasized
that “the question whether the employee made out a prima
facie case” under the McDonnell Douglas framework “is
almost always irrelevant” because “by the time the district
court considers an employer’s motion for summary judgment
. . . 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.” 520 F.3d at 493; see
also id. (“[J]udicial inquiry into the prima facie case is usually
misplaced.”). Not only is the prima facie case irrelevant at
this point, but “the district court need not—and should not—
decide whether the plaintiff actually made out a prima facie
case under McDonnell Douglas.” Id. at 494. Because the
employer in Brady had asserted its legitimate,
nondiscriminatory reason for the challenged demotion, we
15
rejected awarding summary judgment on the ground that the
plaintiff’s prima facie case was wanting, instead affirming
because all the evidence, taken together, was insufficient to
support a reasonable inference of discrimination. Id. at 494–
95.
Because these principles apply equally to retaliation
claims, they control the outcome of this case. See Wiley, 511
F.3d at 155–56. Given that the Board asserted its legitimate
non-retaliatory explanation for the 2000 evaluation—that it
reflected an honest assessment of Jones’s performance—the
district court should have proceeded to the ultimate issue of
retaliation vel non instead of evaluating whether Jones made
out a prima face case. At that stage, the only question is
whether the employee’s evidence creates a material dispute on
the ultimate issue of retaliation “‘either directly by [showing]
that a discriminatory reason more likely motivated the
employer or indirectly by showing that the employer’s
proffered explanation is unworthy of credence.’” Aikens, 460
U.S. at 716 (quoting Burdine, 450 U.S. at 256); see also Aka
v. Wash. Hosp. Ctr., 156 F.3d 1284, 1294 (D.C. Cir. 1998)
(en banc) (“In an appropriate case, ‘[t]he factfinder’s disbelief
of the reasons put forward by the defendant’ will allow it to
infer intentional discrimination.” (quoting St. Mary’s Honor
Ctr. v. Hicks, 509 U.S. 502, 511 (1993) (alteration in
original))). Thus, the court reviews each of the three relevant
categories of evidence—prima facie, pretext, and any other—
to determine whether they “either separately or in
combination” provide sufficient evidence for a reasonable
jury to infer retaliation. Waterhouse v. District of Columbia,
298 F.3d 989, 996 (D.C. Cir. 2002). Moreover, though
evidence of pretext is not per se sufficient to permit an
inference of discrimination, see Aka, 156 F.3d at 1291, it
“[u]sually . . . will be enough to get a plaintiff’s claim to a
16
jury,” George, 407 F.3d at 413 (internal quotation marks
omitted).
Reviewing the evidence ourselves, we conclude that the
district court got it right the first time when it denied the
Board’s motion for summary judgment. We start with Jones’s
prima facie evidence of the temporal proximity between his
September 2000 request for a hearing and the October 2000
evaluation. According to the Board, this timing of events
cannot support an inference of retaliatory motive for two
reasons.
The Board first claims that the temporal proximity
evidence is worthless absent additional evidence that Jones’s
supervisors knew of his September 2000 request—knowledge
the Board insists they lacked. We agree that Jones’s
supervisors could not have retaliated against him unless they
had knowledge of his protected activity. To survive summary
judgment, however, Jones needn’t provide direct evidence
that his supervisors knew of his protected activity; he need
only offer circumstantial evidence that could reasonably
support an inference that they did. And we have repeatedly
recognized that the precise kind of evidence Jones has
offered—that “the employer had knowledge of the
employee’s protected activity, and the adverse personnel
action took place shortly after that activity”—is “adequate to
permit an inference of retaliatory motive,” at least at the
prima facie stage. Holcomb v. Powell, 433 F.3d 889, 903
(D.C. Cir. 2006) (internal quotation marks and alteration
omitted, emphasis added); see also id. (recognizing temporal
proximity when employee “traded correspondence” with
unidentified “senior [agency] personnel” around the time that
her supervisors allegedly retaliated against her); Rochon v.
Gonzales, 438 F.3d 1211, 1220 (D.C. Cir. 2006) (recognizing
temporal proximity when agency had knowledge of
17
employee’s protected activity); Singletary v. District of
Columbia, 351 F.3d 519, 525 n.6 (D.C. Cir. 2003) (similar).
Of course, that such evidence would show intent at the prima
facie stage does not resolve the question of retaliation vel non.
Yet the reason we deem such evidence sufficient to support a
prima facie case—that it tends to support a circumstantial
inference of retaliation—applies to the ultimate inquiry as
well. Moreover, if such evidence can support an inference of
actual retaliatory motive, it necessarily can support an
inference of mere knowledge.
Contrary to the Board’s second argument, Clark County
School District v. Breeden does not weaken any inference of
retaliation that a reasonable jury could draw from the
temporal connection between Jones’s protected activity and
his subsequent adverse evaluation. In Breeden nearly twenty
months had elapsed between the plaintiff’s protected activity
(the filing of an EEOC complaint) and the adverse action (a
proposed transfer). 532 U.S. at 273–74. Three months before
the supervisor recommended the transfer, however, the
employer received a right-to-sue letter from the EEOC. Id. at
272. The employee argued that this chronology supported an
inference that the proposed transfer was in response to her
EEOC complaint because the right-to-sue letter provided the
employer with its earliest notice of it. Id. at 273. The
Supreme Court thought otherwise. Relying on the fact that
Title VII and its implementing regulations require notice to
the employer upon the filing of charges, the Court reasoned
that “if one presumes [the supervisor] knew about [the right-
to-sue letter], one must also presume that she (or her
predecessor) knew almost two years earlier about the
protected action (filing of the EEOC complaint) that the letter
supposedly disclosed.” Id. at 273. As such, the Court
deemed the interval between the protected activity and the
adverse action to be the twenty months actually separating the
18
two rather than the three months between the right-to-sue
letter and the adverse action. “[A]ction taken . . . [twenty]
months later,” the Court concluded, “suggests, by itself, no
causality at all.” Id.
Relying on Breeden, the Board argues that if its
knowledge of Jones’s protected activity is sufficient to
“presume” his supervisors’ knowledge, then it’s also
sufficient to presume that his supervisors knew of his initial
informal complaint, and because that occurred eleven months
prior to the 2000 evaluation, far too much time passed to infer
a retaliatory motive. Nothing in Breeden supports this
proposition. Unlike the right-to-sue letter at issue in Breeden,
Jones’s September 2000 request for a hearing was itself
protected activity, as the Board concedes, see Appellee’s Br.
7. Compare Breeden, 532 U.S. at 273 (considering it “utterly
implausible . . . that the EEOC’s issuance of a right-to-sue
letter—an action in which the employee takes no part—is a
protected activity of the employee”), with, e.g., Singletary,
351 F.3d at 524–25 (deeming the plaintiff’s letter requesting a
status update to be protected activity). Therefore, the letter’s
significance is not that it disclosed earlier protected activity
but that it was itself protected activity. Were we to accept the
Board’s argument, temporal proximity could support an
inference of retaliation only in the immediate aftermath of the
employee’s first protected act. Yet because Title VII and the
ADEA protect employees who engage in any protected
activity, we have repeatedly held that an adverse action
following closely on the heels of protected activity may in
appropriate cases support an inference of retaliation even
when occurring years after the initial filing of charges. See
Holcomb, 433 F.3d at 903 (considering protected activity
occurring two years after the filing of the complaint);
Singletary, 351 F.3d at 524–25 (concluding that the district
court erred in evaluating temporal proximity only on the basis
19
of the “original protected activity” rather than protected
activity years later (internal quotation marks omitted)).
To be sure, in some cases the nature of the protected
activity and the full context (including the whole chain of
events since the initial filing of a complaint) may render
evidence of temporal proximity insufficient to permit an
ultimate inference of retaliation. But we needn’t decide
whether this is such a case, for Jones has offered evidence
discrediting the Board’s legitimate explanation for the 2000
evaluation—evidence that alone provides an adequate basis
from which a reasonable jury might infer retaliation.
Specifically, in response to the Board’s claim that Jones’s
2000 “commendable” rating reflected an honest assessment of
his performance and his failure to complete two projects in
particular, Jones offered evidence that he was never assigned
one of the projects and was removed from the other. As we
have said, such evidence “usually” is itself sufficient to allow
a reasonable jury to infer retaliation. George, 407 F.3d at
413. Although a jury may ultimately choose to believe the
Board’s explanation of events rather than Jones’s, at this stage
we refrain from making credibility determinations, weighing
the evidence, or drawing inferences from the evidence—
these, after all, are “jury functions, not those of a judge ruling
on a motion for summary judgment.” Id. It’s enough for us
to conclude, as the district court originally did, that this
evidence would allow a reasonable jury to believe Jones’s
version of events.
2001–2003 Evaluations
As in the case of the 2000 evaluation, even though the
Board had offered its legitimate explanation for the 2001–
2003 evaluations, the district court assumed that a
shortcoming in Jones’s prima facie case entitled the Board to
judgment as a matter of law. As we explained above,
20
however, under the Supreme Court’s decision in Aikens and
our cases interpreting it, the district court should have focused
only on the ultimate question of retaliation vel non, not the
antecedent—and by then irrelevant—prima facie case.
Of course we could decide this issue ourselves, see supra
at 16, but the Board has urged us not to do so. Instead,
acknowledging that the district court ruled in its favor only
because of perceived defects in Jones’s prima facie case and
that the court neither addressed the question of retaliation vel
non nor even considered entire categories of evidence relevant
to its resolution, the Board asks that if we “decide that the
district court erred in its determination of the causation issue,”
we “remand the matter to the district court for consideration
of the issue of retaliation vel non.” Appellee’s Br. 17. We
think this makes sense. Given “the state of the record and the
factual intricacies intertwined with [Jones’s] allegations,” we
are “unwilling to delve into . . . questions that the district
court did not address.” Steele v. Schafer, 535 F.3d 689, 696
(D.C. Cir. 2008). Consistent with the Board’s request, then,
we shall reverse the grant of summary judgment on Jones’s
retaliation claims arising from the 2001–2003 evaluations and
remand to allow the district court to address the retaliation vel
non question in the first instance. See id. at 696-97 (reversing
and remanding after concluding that district court made an
error of law in granting summary judgment).
IV.
For the foregoing reasons, we affirm in part and reverse
in part, remanding the retaliation claims arising from the 2000
evaluation for trial and those arising from the 2001–2003
evaluations for further proceedings consistent with this
opinion. In doing so, we emphasize that nothing we say here
forecloses the district court from granting the Board summary
judgment as to the 2001–2003 evaluations if it concludes that
21
the evidence, viewed in the light most favorable to Jones, is
insufficient to support a reasonable inference of retaliatory
intent. Any such conclusion, however, must rest on all
available evidence, not on any perceived technical
deficiencies in Jones’s prima facie case.
So ordered.