United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 20, 2013 Decided December 24, 2013
No. 12-5130
OLGA HERNANDEZ,
APPELLANT
v.
PENNY SUE PRITZKER, SECRETARY, U.S. DEPARTMENT OF
COMMERCE,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:08-cv-01716)
Alan Lescht argued the cause and filed the briefs for
appellant.
Carl E. Ross, Assistant U.S. Attorney, argued the cause
for appellee. With him on the brief were Ronald C. Machen
Jr., U.S. Attorney, and R. Craig Lawrence, Assistant U.S.
Attorney.
Before: GARLAND, Chief Judge, and GINSBURG and
SENTELLE, Senior Circuit Judges.
2
Opinion for the Court filed by Senior Circuit Judge
GINSBURG.
GINSBURG, Senior Circuit Judge: Olga Hernandez, a
Hispanic woman, appeals the district court’s entry of
summary judgment for her former employer, the United
States Department of Commerce, on Hernandez’s claim that
the Department retaliated against her for filing a complaint of
workplace harassment based upon her sex and national origin,
in violation of Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e–3(a). Specifically, Hernandez claimed the
Department retaliated by placing her on an unsuitable detail,
changing her employment status to probationary, and
terminating her employment. Because no reasonable juror
could find any of these actions motivated by retaliation, we
affirm the judgment of the district court.
I. Background
From 1998 to 2005 Hernandez worked as a Patent
Examiner at the Patent and Trademark Office (PTO), an
agency within the Department of Commerce. In May 2006,
six months after she left the PTO, Hernandez was hired as a
General Engineer by the Nuclear and Missile Technology
Division (NMTD), a unit of the Bureau of Industry and
Security (BIS), which is also within the Department of
Commerce. She was issued a Notification of Personnel
Action (SF-50) that indicated hers was a career appointment.
Although such an appointment is usually subject to a one-year
probationary period, see 5 C.F.R. §§ 315.801(a), 315.802(a),
Hernandez’s SF-50 made no reference to probation.
Hernandez’s new position at the NMTD required her to
review applications for licenses to export commodities
relevant to nuclear and missile proliferation. Hernandez was,
3
by her own account, sometimes confused about her job
responsibilities, and after a few months one of her colleagues
expressed concern to Hernandez’s second-line supervisor
about her handling of several cases. In her first performance
review, which was issued in October 2006, Hernandez
nevertheless received a rating of 3 out of 5 in all areas. Her
immediate supervisor, Steven Clagett, noted that her
performance in all areas was “good and ... appropriate for a
GS-12 with only a partial year of experience.”
In December 2006 Hernandez filed an informal
complaint of workplace harassment with the Department’s
Office of Civil Rights, which caused Clagett’s supervisor,
Steven Goldman, to meet with Hernandez about her concerns.
At the meeting Hernandez alleged, among other things,
Clagett had unfairly denied her a cash bonus and her
colleagues had exchanged sexually charged comments in her
presence. When Hernandez asked Goldman whether she
could be transferred to another office, he said a transfer would
be a last resort but he might be able to arrange it if the
receiving office and Hernandez agreed. Hernandez asked for
some time to consider how she wanted to proceed, and two
weeks later asked Goldman in writing to “transfer [her]
outside of [C]ommerce ... or outside BIS.” Despite having
been advised by Goldman that he could transfer her only
within the BIS, Hernandez did not identify any particular
office within the BIS to which she wanted to transfer.
In January 2007 Goldman detailed Hernandez to the
Chemical and Biological Controls Division (CBCD) within
the BIS. Hernandez’s new position required her to review
applications for licenses to export items such as pumps and
valves, chemicals, and biological equipment relevant to
nonproliferation or with foreign policy implications.
Hernandez was unhappy with the detail because her
4
background in electrical engineering did not prepare her, in
her view, for work with biological and chemical material.
Hernandez claims she then heard from colleagues that there
were open positions in “the encryption and radar
departments” of the BIS, to which she believed she was by
background better suited; she asserts she emailed Goldman’s
supervisor asking for a meeting but he declined. Even so
Hernandez did not contact Goldman about her unhappiness at
the CBCD or ask him to move her to another unit.
In February 2007 Hernandez filed a formal Equal
Employment Opportunity (EEO) complaint with the
Department’s Office of Civil Rights. She alleged, among
other things, the Department had retaliated against her for
previously having complained about discrimination by
detailing her “to a chemical engineering job, despite her
education and experience being in electrical engineering.”
In April 2007 the Department issued a new SF-50,
labeled a “correction,” changing Hernandez’s employment
status to probationary. A Department official immediately
asked for an explanation from a Human Resources employee,
who explained that, although prior federal service may be
credited toward probation in some circumstances,
Hernandez’s prior service with the PTO could not be credited
because she had a break in service of more than 30 days and
because her position at the BIS was different from the one she
had at the PTO. See 5 C.F.R. § 315.802(b) (“Prior Federal
civilian service ... counts toward completion of probation
when the prior service is in the same agency ..., is in the same
line of work ..., [and] is followed by no more than a single
break in service that does not exceed 30 calendar days”).
Hernandez’s appointment form, which made no mention of
the yearlong probationary period, therefore required
correction.
5
Two weeks after changing her status to probationary, the
Department terminated Hernandez’s employment based upon
her “failure to demonstrate acceptable performance during
[the] probationary period.” In the accompanying performance
review, Clagett explained Hernandez had been rated
satisfactory in October 2006 “largely because her mistakes
were initially considered to be the result of inexperience, or
‘learning mistakes.’” Since then, however, it had become
“clear that [her] mistakes are reflective of her performance
abilities, which are not acceptable for a GS-12 engineer.”
Clagett noted that while detailed to the CBCD, Hernandez had
incorrectly processed 32 out of 120 license applications and 6
out of 17 commodity classifications even though her
assignments were not particularly difficult and she had been
apprised repeatedly of her mistakes. This performance,
Clagett concluded, was “below expectations.”
Soon thereafter Hernandez amended her formal EEO
complaint to add her termination to the list of allegedly
retaliatory acts. When more than 180 days had passed
without a final decision from the Office of Civil Rights, see
29 C.F.R. § 1614.108(e), Hernandez filed suit in the district
court claiming, as relevant here, the Department retaliated
against her for filing an EEO complaint by (1) detailing her to
the CBCD, (2) changing her status to probationary, and (3)
terminating her employment.
The district court entered summary judgment for the
Department. Hernandez v. Gutierrez, 850 F. Supp. 2d 117,
125 (D.D.C. 2012). The court first held Hernandez’s detail to
the CBCD was not an “adverse action” because it “did not
affect her pay, grade, or job responsibilities” and was done at
her request. Id. at 122. The court next held Hernandez had
failed to exhaust her administrative remedies with respect to
her probationary status because her EEO complaints had not
6
challenged the change in her employment status; alternatively,
the court reasoned, the Department “provided a legitimate,
non-discriminatory reason for the adverse action — to correct
an administrative error — and [Hernandez] has failed to
produce sufficient evidence for a reasonable jury to infer that
it was retaliatory.” Id. at 123. Finally, the court held
“Hernandez provided insufficient evidence either to discredit
[the Department’s] asserted non-discriminatory reason for her
termination — poor performance — or to show that the action
was retaliatory.” Id. at 124.
II. Analysis
Title VII prohibits not only outright discrimination by an
employer against an employee on the basis of his or her “race,
color, religion, sex, or national origin,” 42 U.S.C. § 2000e–
2(a), but also retaliation based upon an employee’s having
“made a charge, testified, assisted, or participated in any
manner” in a Title VII “investigation, proceeding, or
hearing,” id. § 2000e-3(a). Where, as here, a plaintiff proffers
only indirect evidence of retaliation, we analyze her claims
within the framework of McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802–05 (1973), as simplified by Brady v. Office
of Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008) and
Jones v. Bernanke, 557 F.3d 670, 678–79 (D.C. Cir. 2009):
[Once] the employer has proffered a legitimate, non-
retaliatory reason for a challenged employment action,
the central question is whether the employee produced
sufficient evidence for a reasonable jury to find that
the employer’s asserted non-retaliatory reason was not
the actual reason and that the employer intentionally
retaliated against the employee in violation of Title
VII.
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McGrath v. Clinton, 666 F.3d 1377, 1383 (D.C. Cir. 2012)
(internal brackets and quotation marks omitted). Because the
Department has offered legitimate, non-retaliatory reasons for
detailing Hernandez to the CBCD, changing her status to
probationary, and terminating her employment, the “central
question” in this case is whether Hernandez has produced
sufficient evidence for a reasonable jury to find those reasons
were but pretexts for retaliation.
A. Detail to the CBCD
The district court rejected Hernandez’s claim that the
Department retaliated against her by detailing her to the
CBCD on the ground that the detail “was not an adverse
action.” 850 F. Supp. 2d at 122. We need not pass upon that
ground, however. We may assume the detail to the CBCD
was adverse and yet affirm the judgment for the Department
upon the indisputable ground that Hernandez failed altogether
to rebut the Department’s legitimate, non-retaliatory
explanation for its action — viz., “Hernandez requested that
she be transferred out of her unit.” See Taylor v. Solis, 571
F.3d 1313, 1320 n.* (D.C. Cir. 2009) (“The court can resolve
[the central question of retaliation vel non] in favor of the
employer based either upon the employee’s failure to rebut its
explanation or upon the employee’s failure to prove an
element of her case — here that her employer took a
materially adverse action against her”); Kleiman v. Dep’t of
Energy, 956 F.2d 335, 339 (D.C. Cir. 1992) (“[W]e may
affirm on different grounds the judgment of a lower court ‘if
it is correct as a matter of law’” (quoting United States v.
Garrett, 720 F.2d 705, 710 (D.C. Cir. 1983)).
Hernandez argues the Department’s explanation is not
credible because she had no choice but to accept the detail to
the CBCD. She claims the failure of the Department to offer
8
her one of the putatively open positions “in the encryption and
radar departments” of the BIS, which were “more suited to
[her] background and experience,” effectively forced her “to
accept the detail [to the CBCD] in order to get away from the
hostile work environment” at the NMTD. Because the
Department “gave her no choice in the matter,” Hernandez
argues, she can “hardly be said to have agreed to the detail” to
the CBCD.
Hernandez has not met her burden of producing
“sufficient evidence for a reasonable jury to find that the
[Department’s] asserted non-retaliatory reason was not the
actual reason” for its detailing her to the CBCD. McGrath,
666 F.3d at 1377 (internal brackets and quotation marks
omitted). As an initial matter, the only evidence Hernandez
offers of the alleged vacancies in the encryption and radar
departments is her own statement claiming two colleagues
told her about the openings; this of course is “pure hearsay”
and “counts for nothing in an opposition to summary
judgment.” Id. at 1383 (internal quotation marks omitted).
Nor does Hernandez offer any evidence that Goldman knew
of the alleged vacancies. Even if we were to assume,
however, there were other positions available within the BIS
and Goldman was aware of them, the undisputed evidence
shows Hernandez requested a transfer out of the NMTD, did
not identify a preferred office within the BIS, and did not
complain to Goldman about the CBCD even once she was
there. On these facts, no reasonable jury could find the
Department’s asserted non-retaliatory reason for detailing
Hernandez to the CBCD — that she had requested a transfer
— was a pretext for retaliation.
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B. Change in Probationary Status
Pursuant to its authority to implement Title VII as it
applies to the federal government, the Equal Employment
Opportunity Commission has established “detailed procedures
for the administrative resolution of discrimination
complaints;” a complainant “must timely exhaust these
administrative remedies before bringing [her] claims to
court.” Bowden v. United States, 106 F.3d 433, 437 (D.C.
Cir. 1997). In her formal EEO complaint Hernandez alleged
the Department retaliated against her by terminating her
employment but did not allege the Department retaliated by
changing her status to that of a probationer. The district court
therefore held Hernandez failed to exhaust her administrative
remedies with respect to her change to probationary status.
850 F. Supp. 2d at 123.
In her brief Hernandez advances two arguments that we
should consider the merits of her change of status claim
despite her failure to raise it in her EEO complaint. First, she
argues her change of status claim “is related to her wrongful
termination claim and/or could have been expected to grow
out of that claim.” On this theory, Hernandez “gave the
[Department] an opportunity to resolve her” change of status
claim by raising the “like or related” claim of retaliatory
termination. Weber v. Battista, 494 F.3d 179, 184 (D.C. Cir.
2007); see also Wiley v. Glassman, 511 F.3d 151, 160 (D.C.
Cir. 2007). Alternatively, Hernandez says “the claim
regarding the change in [her] status is not a new claim but
rather a detail of [her] claim that the agency wrongfully
terminated her.” On this theory, Hernandez did not need to
exhaust her allegation that the Department improperly put her
on probationary status because that allegation was merely
evidence in support of her claim of retaliatory termination, not
an independent claim of retaliation. At oral argument
10
Hernandez expressly abandoned her first theory in favor of
her second.
We shall assume without deciding that we may consider
Hernandez’s change to probationary status as evidence of her
allegedly retaliatory termination despite her failure to identify
the change in her administrative complaint. Treating
Hernandez’s change of status as evidence, however, does not
avoid the need to evaluate the Department’s stated reason for
making that change. Evidence must be relevant in order to be
admissible, and the relevance of the Department’s changing
Hernandez’s status to probationary depends squarely upon its
reason for that change. If, as the Department claims, it
changed Hernandez’s status in order to correct a clerical error,
then the change would not tend to prove the Department went
on to terminate her with retaliatory intent. See FED. R. EVID.
401 (“Evidence is relevant if: (a) it has any tendency to make
a fact more or less probable than it would be without the
evidence; and (b) the fact is of consequence in determining
the action”). If, on the other hand, the Department’s
explanation is not credible, then its changing Hernandez’s
status to probationary — and thereby making it easier to
terminate her — would indeed tend to prove her termination
was retaliatory.
The Department’s explanation for changing Hernandez’s
status to probationary is supported by the law and by the facts
of this case. Section 315.801(a)(1) of 5 C.F.R. provides:
“The first year of service of an employee who is given a
career or career-conditional appointment ... is a probationary
period when the employee [w]as appointed from a
competitive list of eligibles.” Hernandez’s appointment form
shows — and she does not dispute — hers was a career
appointment. Therefore she was subject to a yearlong
probationary period if she was “appointed from a competitive
11
list.” Although the Action Code on the copy of Hernandez’s
appointment form in the record is obscured, the other fields
on that form are consistent with the Department’s position
that she was hired from a competitive list, as is the corrected
form, which reports the Code was “100,” the correct code for
such a hire. See UNITED STATES OFFICE OF PERSONNEL
MANAGEMENT, GUIDE TO PROCESSING PERSONNEL ACTIONS
tbl. 9-A (Sept. 2013) [hereinafter OPM Guide], available at
http://www.opm.gov/policy-data-oversight/data-analysis-
documentation/personnel-documentation/processing-
personnel-actions/gppa09.pdf; accord Pervez v. Dep’t of the
Navy, 193 F.3d 1371, 1374 (Fed. Cir. 1999). The record
therefore supports the Department’s claim that Hernandez
was subject to a probationary period under § 315.801(a)(1).*
Nonetheless, Hernandez maintains she was not hired
from a competitive list but rather was reinstated; as such, “she
was not required to complete a probationary period as a
General Engineer because she had previously completed a
probationary period when she worked as a Patent Examiner.”
Although a reinstated employee who completed a
probationary period in her prior job is indeed exempt from a
second period of probation, 5 C.F.R. § 315.801(a)(2), there is
nothing in the record that suggests Hernandez was hired by
reinstatement. Had the Department intended to reinstate
Hernandez when it first hired her at BIS, it would have coded
*
The record also supports the Department’s undisputed contention
that Hernandez’s prior service at the PTO could not be credited
towards her probationary period at the NMTD. Prior federal
civilian service may count toward a probationary period only if,
among other things, the employee’s prior service was “in the same
line of work” as her new service, 5 C.F.R.
§ 315.802(b)(2), and was followed by a “break in service that does
not exceed 30 calendar days,” id. § 315.802(b)(3). Hernandez was
hired by the NMTD six months after she left the PTO.
12
her appointment form as a reinstatement, not as a career
appointment from a competitive list. Compare OPM Guide
tbl. 9-A (codes used for a competitive appointment) with id.
tbl. 9-C (codes used for reinstatement). Because Hernandez
has failed to rebut the Department’s legitimate, non-
retaliatory reason for changing her status to probationary, the
change in status is irrelevant and hence inadmissible as
evidence the reason given for her termination was a pretext.
C. Termination of Employment
The Department’s stated reason for terminating
Hernandez’s employment was her “failure to demonstrate
acceptable performance during [her] probationary period.”
We agree with the Department that she has “provided no
evidence, other than her subjective opinion,” to rebut that
reason. The undisputed evidence is that Hernandez made
numerous mistakes throughout her tenure at the BIS and that
both her colleagues and supervisors expressed concern about
her work both at the NMTD and at the CBCD, and both
before and after she had lodged her first EEO complaint. In
fact, Hernandez conceded at her deposition that she was
sometimes confused about her job responsibilities, and that
she had particular difficulty with her work at the CBCD.
Hernandez has little to add in her brief. She complains
she “was not provided with appropriate training,” but offers
no evidence that any of her colleagues was provided with
training or guidance she was denied. Hernandez also
complains she was “never advised ... her performance was
unsatisfactory,” but even if this is true, it does not discredit
the undisputed evidence that her performance was indeed
unsatisfactory. On this record, no reasonable jury could find
the Department’s stated reason for terminating Hernandez’s
13
employment was pretextual and the real reason was
retaliation.
III. Conclusion
The Department has shown it detailed Hernandez at her
request, corrected her record only to reflect the probation she
was required by law to serve, and terminated her employment
because her performance was not satisfactory. Because
Hernandez has not produced the slightest evidence to show
the Department’s account is a pretext for retaliation, the
judgment of the district court is
Affirmed.