UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-2081
DENISE BURGESS,
Plaintiff – Appellant,
v.
STUART W. BOWEN, JR., Special Inspector General for Iraq
Reconstruction,
Defendant – Appellee,
and
PETE GEREN, The Honorable, in his official capacity as
Secretary of the Army,
Defendant.
------------------------
METROPOLITAN WASHINGTON EMPLOYMENT LAWYERS ASSOCIATION,
Amicus Supporting Appellant
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. James C. Cacheris, Senior
District Judge. (1:09-cv-00763-JCC-JFA)
Argued: December 8, 2011 Decided: February 17, 2012
Before TRAXLER, Chief Judge, and AGEE and DIAZ, Circuit Judges.
Vacated and remanded by unpublished opinion. Judge Diaz wrote
the opinion, in which Chief Judge Traxler and Judge Agee joined.
ARGUED: Linda C. Bailey, STEPTOE & JOHNSON, LLP, Washington,
D.C., for Appellant. Yiris E. Cornwall, OFFICE OF THE UNITED
STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF:
Harry Lee, John F. O'Connor, Michael J. Baratz, STEPTOE &
JOHNSON, LLP, Washington, D.C.; Susan E. Huhta, Emily B. Read,
THE WASHINGTON LAWYERS' COMMITTEE FOR CIVIL RIGHTS AND URBAN
AFFAIRS, Washington, D.C., for Appellant. Neil H. MacBride,
United States Attorney, Kevin J. Mikolashek, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Alexandria, Virginia, for Appellee. Leslie D. Alderman III,
ALDERMAN, DEVORSETZ & HORA, PLLC, Washington, D.C.; Alan R.
Kabat, BERNABEI & WACHTEL, PLLC, Washington, D.C., for Amicus
Supporting Appellant.
Unpublished opinions are not binding precedent in this circuit.
2
DIAZ, Circuit Judge:
Denise Burgess, an African American female, was terminated
from her executive-level position at a federal agency,
purportedly due to a reorganization necessitated by budgetary
pressures. The district court granted summary judgment to the
agency on Burgess’s claims alleging discrimination and
retaliation based on her termination and the denial of a
transfer to another position within the agency. Viewing the
record evidence in the light most favorable to Burgess, we
conclude that granting summary judgment to the agency was
inappropriate. Accordingly, we vacate the district court’s
judgment and remand for further proceedings.
I.
We recite the facts, with reasonable inferences drawn, in
favor of Burgess, the nonmovant. 1
Congress created the office of the Special Inspector
General for Iraq Reconstruction (“SIGIR”) to oversee all U.S.-
funded reconstruction programs and projects in Iraq. Its chief
mission is to provide audit and oversight of the use, and
1
See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986).
3
potential misuse, of the Iraq Relief and Reconstruction Fund,
and all expenditures associated with reconstruction activities
in Iraq. SIGIR is also mandated to provide Congress quarterly
and semi-annual reports and maintains a separate Congressional
Affairs office to fulfill these responsibilities. Additionally,
SIGIR maintains an office of Public Affairs responsible for the
organization’s external communication. Once a stand-alone
office, Public Affairs is now part of the agency’s Congressional
Affairs office.
Since SIGIR’s inception, Stuart Bowen, Jr., has served as
the head of the agency. In January 2007, Bowen recruited
Burgess to join SIGIR as the Assistant Inspector General for
Public Affairs (“AIG-PA”) through March 2008. 2 In this role,
Burgess served as “the principal staff advisor and expert in the
conduct of liaison with national and international news media,
other collective and individual stakeholders, and public
audiences for [SIGIR].” J.A. 428. In response to Burgess’s
request for an administrative assistant, SIGIR hired Patricia
Redmon, also an African American female, as a contract employee.
Although the functions of the Public Affairs office ostensibly
2
Because SIGIR is a limited-purpose, temporary agency, all
employees serve for a specified term.
4
called for four full-time employees, Burgess and Redmon were the
office’s only employees during Burgess’s tenure.
Following a brief detail to the U.S. State Department,
Ginger Cruz returned to SIGIR in February 2007 as a “Senior
Advisor.” In June 2007, Cruz was restored to her former post as
Deputy Inspector General for Policy, where she directly
supervised Burgess. According to Burgess, Cruz took an
immediate dislike to her and began usurping Burgess’s authority
and duties and making discriminatory and harassing remarks. In
one such incident, Cruz “out of the blue” told Burgess that
“people who file discrimination complaints are weak links in the
chain . . . looking to excuse their own personal failing.” Id.
1350. Burgess interpreted this comment as racial bias directed
against her specifically. Burgess eventually raised the issue
of Cruz’s general hostility toward her with SIGIR’s Chief of
Staff Nick Arnston, alleging that Cruz was targeting her because
of her race.
On July 19, 2007, Cruz notified Burgess that Redmon was to
be terminated in two weeks’ time. Burgess responded that she
believed that she and Redmon were being targeted, and that the
Public Affairs section--then consisting solely of two African
American women--was being singled out for elimination. Burgess
also expressed that it would be difficult for her to manage the
section’s workload without an assistant. Cruz did not respond
5
directly to Burgess’s claim that she and Redmon were being
targeted, but did assure Burgess that she would have adequate
administrative support going forward.
On July 23, Burgess sent an email to Cruz in which she
questioned the “fairness and equality” of the decision to
terminate Redmon. Id. 305. She asked to meet with Cruz to
discuss the matter. Cruz in turn contacted Arnston and
requested that he arrange a meeting between Cruz and Patrick
Bowers, SIGIR’s deputy general counsel. The purpose of that
meeting was to discuss, among other topics, “EEO [Equal
Employment Opportunity]” matters. Id. 1945.
Later that day, Cruz notified Burgess in a meeting also
attended by Bowers that Burgess’s AIG-PA position was being
eliminated because of budget constraints. When Burgess pressed
for a more detailed explanation, Cruz responded that the
position was being eliminated as part of a budget-driven
reorganization and that SIGIR required the “right mix of
people.” Id. 159. Cruz resisted Burgess’s further inquiries,
and informed Burgess that she was to remain on paid
administrative leave until September 1, 2007, although she was
not to return to work after July 27. Arnston later wrote to
Burgess and explained that she was being terminated “[d]ue to
the reorganization of the Office of Public Affairs.” Id. 386.
6
Separately, also on July 23, Cruz asked Arnston to draft a
position description for a new Director of Public Affairs
(“DPA”) position. A former SIGIR employee, Kristine Belisle, a
white woman, was selected for the new position, even though
performance deficiencies were in part responsible for her
initial departure from SIGIR in March 2007. Cruz later
explained that Belisle was hired over Burgess because the DPA
role required “someone who was able to do the heavy lifting, who
was not above making the phone calls, who was not above doing .
. . the day-to-day scheduling, management and callbacks.” Id.
65. 3
3
Cruz admitted, however, that she might have been open to
hiring Burgess in another capacity had their July 23 meeting
gone differently.
Q: But yet there could be no opportunity for [Burgess] to
be the director of public affairs?
A: No.
Q: No opportunity anywhere else in the agency?
A: No.
Q: And no discussion whatsoever of other opportunities?
A: No.
Q: However, had the conversation that you had on July 23rd
gone differently, you may have been able to explore some
opportunity?
A: I would have spoken to her about it. I don’t know that
we would have arrived at anything other than the decision
we ended up with.
(Continued)
7
It was common practice in SIGIR to reassign employees who
were terminated, whether through a “reorganization” or
otherwise, to other positions within the agency. Despite
Burgess’s laudable work--as evidenced by her receipt of a letter
of commendation for “exemplary service on the job” accompanied
by an $8500 cash reward on May 31, 2007, and a separate letter
from Arnston in which he congratulated Burgess on her fine
performance--she was not offered another position in the agency.
Burgess was the only African American member of SIGIR’s
senior management at the time, the only member of senior
management to be involuntarily terminated, and the only SIGIR
employee terminated as part of the agency’s reorganization.
After exhausting her administrative remedies, Burgess filed
a four-count complaint in the district court alleging violations
of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e
et seq., with respect to her termination and the denial of her
transfer to the DPA position or another position within the
agency. SIGIR moved for summary judgment, which the district
court granted. Burgess timely appealed.
Id. 1677.
8
II.
A.
We review de novo a grant or denial of summary judgment,
applying the same standard applied by the district court.
Overstreet v. Ky. Cent. Life Ins. Co., 950 F.2d 931, 938 (4th
Cir. 1991). Summary judgment is appropriate only where the
record shows there is no genuine issue of material fact and the
moving party is entitled to judgment as a matter of law. Fed.
R. Civ. P. 56(c). The summary judgment inquiry turns on
“whether the evidence presents a sufficient disagreement to
require submission to a jury or whether it is so one-sided that
one party must prevail as a matter of law.” Anderson, 477 U.S.
at 251-52. Only in the latter case may the court grant summary
judgment, but a jury must resolve the dispute if the evidence
permits either of two reasonable conclusions. Id. at 250-51; In
re French, 499 F.3d 345, 352 (4th Cir. 2007).
It is not the district court’s role to “weigh the evidence
and determine the truth of the matter” but instead to determine
whether there are “genuine factual issues that properly can be
resolved only by a finder of fact because they may reasonably be
resolved in favor of either party.” Anderson, 477 U.S. at 250.
A district court considering a motion for summary judgment must
view the evidence in the light most favorable to the nonmoving
party, Unus v. Kane, 565 F.3d 103, 115 (4th Cir. 2009), and draw
9
all inferences in favor of the nonmovant, Williams v. Griffin,
952 F.2d 820, 823 (4th Cir. 1991).
B.
A three-step framework applies to the resolution of
discrimination and retaliation claims where, as here, there is
only circumstantial evidence. See McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802-04 (1973) (discrimination); Lamb v.
Boeing, 213 F. App’x 175, 179 (4th Cir. 2007) (“Retaliation
claims function in parallel.”) (citing Beall v. Abbott Labs.,
130 F.3d 614, 619 (4th Cir. 1997)). First, the plaintiff has
the initial burden to prove her prima facie case by a
preponderance of the evidence, which she may do by “proving a
set of facts which would enable the fact-finder to conclude, in
the absence of any further explanation, that it is more likely
than not that the adverse employment action was the product of
discrimination [or retaliation].” Ennis v. Nat’l Ass’n of Bus.
& Educ. Radio, Inc., 53 F.3d 55, 58 (4th Cir. 1995) (citing
Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 254
(1981)). If such a showing is made, the burden shifts to the
defendant to come forward with evidence that “if believed by the
trier of fact, would support a finding that unlawful
discrimination [or retaliation] was not the cause of the
employment action.” Hicks, 509 U.S. at 507 (citing Burdine, 450
U.S. at 254-255). If the defendant makes such a showing, the
10
presumption created by the plaintiff’s prima facie case “drops
out of the picture,” and the burden shifts back to the employee
to present evidence from which a reasonable juror could find
that the proffered reason was a pretext for discrimination or
retaliation. Id. at 511 (citing Burdine, 450 U.S. at 255). If
the plaintiff can demonstrate “that the legitimate reasons
offered by the defendant were not its true reasons, but were a
pretext for discrimination [or retaliation],” summary judgment
is not appropriate. Burdine, 450 U.S. at 253.
The parties dispute whether the district court applied an
incorrect standard in evaluating Burgess’s discrimination
claims. Following the Supreme Court’s opinion in St. Mary’s
Honor Ctr. v. Hicks, 509 U.S. 502 (1993), many district courts
required plaintiffs to provide additional evidence to
demonstrate racial discrimination, once the burden shifted back
to the plaintiff after an employer’s proffer of a legitimate
nondiscriminatory reason for its action. This “pretext plus”
standard stemmed from the Court’s pronouncement that, after the
employer’s proffer, “[t]he plaintiff then has ‘the full and fair
opportunity to demonstrate,’ through presentation of his own
case and through cross-examination of the defendant’s witnesses,
‘that the proffered reason was not the true reason for the
employment decision,’ and that race was.” Id. at 507-08
(quoting Burdine, 450 U.S. at 256).
11
In Reeves v. Sanderson Plumbing Prods. Inc., 530 U.S. 133
(2000), the Supreme Court clarified that a prima facie case of
discrimination, combined with evidence from which a jury could
conclude that an employer’s proffered justification was false,
supported an inference of discrimination sufficient to defeat
summary judgment. In other words, a plaintiff is not required
to provide additional evidence that race was the true reason for
the employment decision. The Court further explained as
follows:
Proof that the defendant’s explanation is unworthy of
credence is simply one form of circumstantial evidence
that is probative of intentional discrimination, and
it can be quite persuasive. In appropriate
circumstances, the trier of fact can reasonably infer
from the falsity of the explanation that the employer
is dissembling to cover up a discriminatory purpose .
. . . Moreover, once the employer’s justification has
been eliminated, discrimination may well be the most
likely alternative explanation, especially since the
employer is in the best position to put forth the
actual reason for its decision. Thus, a plaintiff’s
prima facie case, combined with sufficient evidence to
find the employer’s asserted justification is false,
may permit the trier of fact to conclude that the
employer unlawfully discriminated.
Id. at 147-48 (citations omitted).
Reeves did allow, however, that a prima facie case of
discrimination combined with evidence of pretext might fail to
sustain a jury’s finding of liability, in unique situations
where “the record conclusively revealed some other,
nondiscriminatory reason for the employer’s decision, or if the
12
plaintiff created only a weak issue of fact as to whether the
employer’s reason was untrue and there was abundant and
uncontroverted independent evidence that no discrimination had
occurred.” Id. at 148; accord Murrell v. Ocean Mecca Motel,
Inc., 262 F.3d 253, 258-59 (4th Cir. 2001) (“[O]nce a plaintiff
has established a prima facie case and shown the defendant’s
explanation to be false, the plaintiff need not submit
additional evidence of discrimination unless ‘no rational
factfinder could conclude that the action was discriminatory.’ ”
(quoting Reeves, 530 U.S. at 148)).
Applying the McDonnell Douglas framework, the district
court found with respect to all four claims that Burgess either
failed to establish a prima facie case of discrimination or
retaliation, or failed to demonstrate pretext after SIGIR
provided legitimate nondiscriminatory reasons. The district
court thus granted summary judgment to SIGIR on all four of
Burgess’s claims. Burgess contests the district court’s ruling
on each claim, asserting that the district court (1) held her
discrimination claims to the “pretext-plus” standard the Supreme
Court rejected in Reeves and (2) erred in concluding that there
was no evidence to support a causal connection between Burgess’s
protected activity and the agency’s decision to both terminate
Burgess and deny her a transfer. We address each claim in
turn.
13
III.
A.
Burgess first contends that she suffered racial
discrimination when her AIG-PA position was terminated and when
a less qualified white woman was selected for the DPA position
created in its place. To establish a prima facie case of
discriminatory termination, a plaintiff must show that (1) she
is a member of a protected class; (2) she was qualified for her
job and her job performance was satisfactory; (3) in spite of
her qualifications and her performance, she was fired; and (4)
she was replaced by someone outside her protected class, or
otherwise treated differently than similarly situated persons
outside the class. See McDonnell Douglas, 411 U.S. at 802. The
district court characterized the last prong as whether “the
position remained open to similarly qualified applicants after
her dismissal.” Burgess v. Bowen, No. 09-763, 2010 WL 3064307,
at *8 (E.D. Va. Aug. 2, 2010) (quoting Williams v. Cerberonics,
871 F.2d 452, 455-56 (4th Cir. 1989)).
The district court held that Burgess had not established
her prima facie case. Specifically, the court concluded that
Burgess was not replaced by someone outside her protected class
because the AIG-PA position had been eliminated and thereby did
not remain open to similarly qualified applicants following
Burgess’s dismissal. Further, the district court concluded that
14
the new DPA position was not, contrary to Burgess’s assertion,
the functional equivalent of the AIG-PA position. As evidence
of this, the district court relied on certain differences in the
written descriptions of the positions and the responsibilities
thereunder. The district court further accepted SIGIR’s
contention that the new position was ministerial in nature
involving no management or supervision of employees, in contrast
to the autonomous managerial and policy functions of the AIG-PA
position.
Neither party has articulated a standard by which to
properly assess whether a position remains open in the face of
some changes in the written job description. Both parties do,
however, draw our attention to Murray v. Gilmore, 406 F.3d 708,
714 (D.C. Cir. 2005), in which the D.C. Circuit concluded that
the plaintiff offered “plentiful evidence from which a jury
could conclude that rather than functionally eliminating the
[plaintiff’s position], [the defendant] simply gave the position
a new title and tapped [someone else] to hold it.” That case
offers us little guidance, however, because the defendant there
acknowledged that the two positions had “comparable, dual,
functionally equivalent, overlapping responsibilities,” and
admitted that “a reasonable jury could conclude that [the
defendant’s proffer] was pretext.” Id. (internal quotations
omitted). There has been no such admission here, nor does a
15
straightforward comparison of the written job descriptions
clearly indicate whether or not the positions are functionally
equivalent.
We accept the district court’s premise that there may be
circumstances in which the differences between two written job
descriptions are so stark such that it cannot be said that “the
[first] position remained open to similarly qualified
applicants,” Burgess, 2010 WL 3064307, at *8. In this case,
however, the district court failed to credit Burgess’s evidence
tending to show that the positions were intended to be
functionally equivalent and that both involved the same
managerial and oversight responsibilities.
Specifically, Cruz initially sought to hire Belisle under
the identical title, responsibilities, and salary as enjoyed by
Burgess, but shifted gears after being alerted that her proposal
was inconsistent with the agency’s contention that Burgess’s
position was eliminated because of a reorganization. Only then
did the agency revise the description, responsibilities, and
salary of the DPA position. Despite the changes, however,
Belisle testified that, as the DPA, she in fact “was the sole
person managing public affairs, in the sense that [she] was the
sole person implementing the skills and activities of the
position.” J.A. 1260. The new DPA position also involved the
16
supervision of a support staff member who split time with Public
Affairs and another department.
Because the district court failed to view this evidence in
the light most favorable to Burgess, it erred in finding that
Burgess had not established her prima facie case. Indeed, the
transfer of most of the AIG-PA responsibilities to the DPA
position was, in our view, itself sufficient to meet Burgess’s
burden. See Gallo v. Prudential Residential Servs., Ltd.
P’ship, 22 F.3d 1219, 1225 (2d Cir. 1994) (holding that the
plaintiff established a prima facie case where the employer
reassigned almost all of plaintiff’s duties to an employee
outside of the plaintiff’s protected class). Although the
district court found that the “AIG-PA position was eliminated”
and “reject[ed the contention] that it was merely ‘renamed’ as
the Director of Public Affairs,” Burgess, 2010 WL 3064307, at
*9, a reasonable jury could conclude otherwise. See Garcia v.
Pueblo Country Club, 299 F.3d 1233, 1239-41 (10th Cir. 2002)
(reversing summary judgment because whether plaintiff’s position
was eliminated or he was replaced was a “key” material factual
dispute).
The district court’s analysis nevertheless assumed that
Burgess had established a prima facie case, but concluded that
SIGIR had provided legitimate nondiscriminatory reasons for
Burgess’s termination: that budgetary pressures necessitated
17
the elimination of Burgess’s position, that the entire Public
Affairs section was reorganized, and that other employees were
terminated or had their contract positions revoked.
Accordingly, the district court found that Burgess failed to
establish that SIGIR’s reason for her termination was
pretextual. Specifically, the district court held that
“Plaintiff must show there is a genuine issue of material fact
regarding a connection between her race and her adverse
employment action” and “Plaintiff has not come forward with
evidence that these acts were motivated by race discrimination.”
Burgess, 2010 WL 3064307, at *11.
Viewed in the light most favorable to Burgess, however, the
record evidence reveals significant inconsistencies as to
whether other employee or contract positions were eliminated as
part of a reorganization, whether budgetary pressures in fact
necessitated the elimination of Burgess’s position, when the
decisions were made to execute any reorganization, whether the
Public Affairs section was actually reorganized to promote
savings, and whether the elimination of Burgess’s position
actually achieved any meaningful savings. Although the district
court was not persuaded by this evidence, the proper standard is
whether a reasonable jury could have found SIGIR’s proffered
explanation incredible and, thus, could have concluded that
Burgess’s termination was discriminatory.
18
We hold that the district court erred in concluding, as a
matter of irrebuttable fact, that the AIG-PA position had been
eliminated and that the position created in its place was not
sufficiently similar to present that issue to the jury. Second,
the court failed to view the record evidence supporting
Burgess’s challenges to the credibility of SIGIR’s proffered
explanation in the light most favorable to her, and thus failed
to apprehend that such evidence standing alone was sufficient to
show pretext after SIGIR proffered its nondiscriminatory
explanation.
Accordingly, we vacate the district court’s decision to
grant summary judgment to SIGIR on Burgess’s first claim of
discriminatory termination. 4
4
The parties also dispute the district court’s finding of a
“same actor” inference, which permits courts to reject
discriminatory termination claims when the same actor both hired
and fired the plaintiff. As we have held, “[w]hen the hirer and
firer are the same individual, there is a powerful inference
relating to the ‘ultimate question’ that discrimination did not
motivate the employer, and the early resolution of this question
need not be derailed by strict fealty to proof schemes.” Proud
v. Stone, 945 F.2d 796, 798 (4th Cir. 1991). The district court
found that the same actor inference applied, because Burgess was
both hired and fired by Bowen. Burgess contends that she was
hired by Bowen and fired by Cruz, the latter decision occurring
under circumstances showing that Bowen merely rubber-stamped
Burgess’s termination after delegating personnel decisions to
Cruz. Viewed in the light most favorable to Burgess, the
evidence presents a genuine issue of fact as to who made the
decision to terminate Burgess, and thus whether the same actor
inference should apply. See, e.g., Schmidt v. Montgomery Kone,
Inc., 69 F. Supp. 2d 706, 711 (E.D. Pa. 1999) (distinguishing
(Continued)
19
B.
Burgess also alleges that she suffered racial
discrimination when she was denied a transfer to the DPA
position or a “Senior Advisor” position to which terminated
employees were routinely assigned. 5 To establish a prima facie
case for a discriminatory denial of transfer claim, a plaintiff
must show that (1) she is a member of a protected group; (2) she
applied for the position in question; 6 (3) she was qualified for
the position; and (4) she was rejected for the position in favor
of someone not a member of the protected group under
Proud and holding that reliance on the “same actor” inference at
the summary judgment stage is misplaced where there exists a
factual dispute regarding who hired and fired the plaintiff).
Indeed, Cruz herself testified that she made the decision to
terminate Burgess, and Bowen agreed thereafter.
5
Burgess contends that it was SIGIR’s common practice to
assign underperforming employees, or those whose positions had
been eliminated, to “Senior Advisor” positions. She argues that
the fact that she was not offered such a position demonstrates
further that she suffered discrimination. SIGIR disputes this
claim, arguing that no such policy existed. Because we find for
Burgess on her contention that she was denied a transfer to the
DPA position, we do not address this separate argument.
6
As the district court acknowledged, Burgess cannot show
that she applied for or requested a transfer within the agency.
Burgess did, however, file a declaration stating that she “would
have chosen to stay on at SIGIR in the Director of Public
Affairs position or any other position in lieu of termination,”
id. 2118 (internal quotations omitted), which the agency did not
rebut. On this record, the district court elected to treat
Burgess as though she had applied for a transfer, a
determination that the agency does not challenge on appeal.
20
circumstances giving rise to an inference of unlawful
discrimination. Lowery v. Circuit City Stores, Inc., 158 F.3d
742, 760 (4th Cir. 1998) (vacated on other grounds).
The district court found that Burgess had established a
prima facie case with respect to this claim. However, the court
again found that SIGIR had proffered a legitimate
nondiscriminatory reason for denying Burgess the transfer: that
Burgess “was not the person for the job,” Burgess, 2010 WL
3064307, at *12 (internal quotations omitted), and that “Cruz
genuinely perceived that the new . . . position should be filled
by a lower level, hands-on employee,” id. at *13, who would “do
the heavy lifting, who was not above making the phone calls . .
. the day-to-day scheduling, management and callbacks,” id. at
*12 (internal quotations omitted). The district court concluded
that Burgess had failed to present evidence to establish that
this proffered reason was pretextual.
SIGIR asserts that Burgess’s own complaints about lacking
administrative support and resources rendered her unfit for the
DPA position. While Burgess admits to complaining about being
understaffed during her time as the AIG-PA, this does not
necessarily compel the conclusion that she was unable to
accomplish the tasks required of the DPA position. On that
score, Burgess points to evidence showing that she was awarded a
bonus for exemplary performance and that she routinely worked
21
late hours to execute the functions of the Public Affairs
office. This evidence, Burgess contends, demonstrates that she
was fully able and willing to assume any responsibilities called
for by the DPA position. Burgess further contends that Belisle-
-who herself had been terminated at least in part for poor
performance--was in no better position to do so. Finally,
Burgess argues that SIGIR’s vague characterization that she “was
not the person for the job,” id. at *12 (internal quotations
omitted), cannot suffice as a legitimate nondiscriminatory
reason for denying her the transfer; in fact, she contends that
the statement could just as well reveal racial animus. We agree
with Burgess that it should be up to a jury whether to credit
SIGIR’s explanation.
Although we agree with the district court that “there must
be a sufficient record of proof for a reasonable jury to agree
[that race was the basis for denying Burgess a transfer],” id.
at *13 (citing Ross v. Commc’ns Satellite Corp., 759 F.2d 355,
364 (4th Cir. 1995)), we find Burgess satisfies this standard.
Burgess’s evidence as to this claim reveals inconsistencies
undermining the credibility of SIGIR’s proffered explanation as
to why it declined to offer Burgess a transfer to the DPA
position. Under Reeves, Burgess was required to do no more to
survive a motion for summary judgment. Accordingly, we vacate
the district court’s decision as to this claim.
22
C.
Burgess also alleges that she suffered unlawful
retaliation, once when she was terminated and again when she was
denied a transfer. To establish a prima facie case for
retaliation, a plaintiff is required to prove the following: (1)
she engaged in a protected activity; (2) an adverse employment
action was taken against her; and (3) there was a causal
connection between the first two elements. Dowe v. Total Action
Against Poverty in Roanoke Valley, 145 F.3d 653, 656 (4th Cir.
1998). If she does so, the burden shifts to the defendant to
proffer a legitimate, nonretaliatory reason for its decision,
which she must then rebut. Id. The district court assumed that
Burgess engaged in protected activity, but found that her claims
failed the third prong because the decisions to terminate
Burgess’s position and to hire Belisle were made as part of
SIGIR’s reorganization plan prior to Burgess engaging in any
protected activity.
The parties first contest whether Burgess in fact engaged
in protected activity. Burgess contends that she engaged in two
protected acts, the first when she verbally complained to Cruz
that she and Redmon were being “targeted,” and the second when
she questioned the “fairness and equality” of Redmon’s
termination in a subsequent email to Cruz. As to the first
point, Burgess explains that her “intent of using the word
23
targeted was to alert [Cruz] in very concrete terms that there
was concern on [Burgess’s] part that this was racial.” J.A.
1371. As to the second point, Burgess asserts that her email
borrowed verbatim from language that appeared on the Equal
Employment Opportunity Commission website and was also contained
in SIGIR’s EEO policy.
Our cases hold that an employee’s complaint constitutes
protected activity when the employer understood, or should have
understood, that the plaintiff was opposing discriminatory
conduct. Richardson v. Richland Cnty. School Dist. No. 1, 52 F.
App’x 615, 617 (4th Cir. 2002) (citing Galdieri-Ambrosini v.
Nat’l Realty & Dev. Corp., 136 F.3d 276, 291-92 (2d Cir. 1998)
(“[I]mplicit in the requirement that the employer have been
aware of the protected activity is the requirement that it
understood, or could reasonably have understood, that the
plaintiff’s opposition was directed at conduct prohibited by
Title VII.”)); Sajadian v. Am. Red Cross, No. 99-1263, 1999 WL
1111455, at *1 (4th Cir. Dec. 7, 1999) (same); see also EEOC
Compliance Manual § 8-II.B.2 (2006) (“[A] protest is protected
opposition if the complaint would reasonably have been
interpreted as opposition to employment discrimination.”).
Determining whether an employer should have understood a
complaint to constitute protected activity requires courts to
consider whether the complaint could reasonably have led the
24
employer to understand the nature of the complaint in the
context in which it was made. Richardson, 52 F. App’x at 617.
We find that SIGIR actually understood or should have
understood that Burgess was complaining of discriminatory
conduct. See Okoli v. City of Baltimore, 648 F.3d 216, 224 (4th
Cir. 2011) (finding that it was “enough for [the plaintiff] to
twice complain of ‘harassment,’ even if it might have been more
ideal for her to detail the sexual incidents she later relayed”
and that the employer “surely should have known that [the
plaintiff’s] complaints of ‘harassment’ likely encompassed
sexual harassment”). Indeed, the response to Burgess’s email
underscores our conclusion, because Cruz almost immediately
asked to consult with SIGIR’s counsel after receiving Burgess’s
complaint, and the ensuing discussions included “EEO” issues.
The evidence also shows that Cruz, whose former role as SIGIR’s
Chief of Staff made her well familiar with personnel matters,
forwarded Burgess’s complaint to Arnston, SIGIR’s then chief of
staff, who had already discussed with Burgess her concerns about
race discrimination. Three attorneys, including one experienced
in employment law, also received Burgess’s complaint. On these
facts, we have no trouble concluding that SIGIR either
understood, or at the very least should have understood, that
Burgess was complaining of discriminatory conduct.
25
Turning now to the merits of the retaliation claims, we
acknowledge that some of the evidence before the district court
supports SIGIR’s position that the decision to terminate
Burgess, as well as the decision to hire Belisle for the DPA
position, occurred prior to Burgess’s engaging in protected
activity. However, in Okoli we found it “deeply suspicious”
that an employee was fired only hours after she complained to
her superiors. Id. at 223. Further, we found it “undisputed”
that the employee’s supervisor fired the employee “only after
learning of her complaint” and that “[e]ven assuming [the
supervisor] previously contemplated firing her--[the employee’s]
complaint might have been an additional or superseding cause of
her ultimate termination.” Id. at 224. We therefore concluded
that “[a]ny dispute about [the employer’s] alternative,
legitimate basis for firing her returns to the question of
mixed-motives and pretext.” Id. at 225.
In this case, a jury could reasonably find that the
decision to terminate Burgess and to hire Belisle occurred only
after Burgess challenged the fairness and equality of the
decision to terminate Redmon. Specifically, Burgess presented
evidence that, only after Cruz received Burgess’s email, did
Cruz (1) telephone Belisle to offer her a contract position
handling the public affairs duties (before the DPA position was
finalized), (2) instruct Arnston to draft a description for the
26
new DPA position, and (3) schedule a meeting to inform Burgess
of her termination. Finally, and most probative on Burgess’s
retaliatory denial of transfer claim, is Cruz’s own admission
that she would have considered offering Burgess another position
had the conversation during Burgess’s termination meeting gone
differently. 7
We have held that “[v]ery little evidence of a causal
connection is required to establish a prima facie case [of
retaliation],” Tinsley v. First Union Nat’l Bank, 155 F.3d 435,
443 (4th Cir. 1998) (overruled on other grounds); temporal
proximity between the protected activity and the employer’s
adverse action alone will suffice, see Clark Cnty. Sch. Dist. v.
Breeden, 532 U.S. 268, 273 (2001); accord Price v. Thompson, 380
F.3d 209, 213 (4th Cir. 2004). We agree with Burgess that she
has established a prima facie case of retaliation. In
concluding otherwise, the district court again failed to view
the evidence in the light most favorable to Burgess.
Burgess’s claims may nevertheless fail if she cannot
overcome SIGIR’s proffer of a legitimate, nonretaliatory
explanation. The district court dispensed with this analysis
7
Even if the decision to terminate Burgess had already been
made, denying Burgess a transfer itself constitutes an adverse
action and entitles her to present her retaliation claim to the
jury. See Burlington Northern & Santa Fe Railway Co. v. White,
548 U.S. 53, 62 (2006).
27
having found no prima facie case. We find here that the
question of whether the agency proffered a nonretaliatory reason
for terminating Burgess and denying her the transfer merges with
our prior discussion concerning the agency’s proffered reason in
the context of Burgess’s discrimination claims. Although we
agree with the district court that the agency has proffered a
legitimate nonretaliatory reason, Burgess’s prima facie evidence
combined with the additional evidence tending to undermine the
credibility of that reason suffices to defeat the agency’s
motion for summary judgment.
IV.
In sum, the record in this case reveals an abundance of
genuine factual disputes on material issues. While we have
viewed and recounted the facts in the light most favorable to
Burgess, we acknowledge that SIGIR’s contentions also find
support in the record. Be that as it may, the evidence in this
case was not “so one-sided” as to warrant granting SIGIR’s
motion for summary judgment on Burgess’s claims. Accordingly,
we vacate the district court’s judgment and remand for further
proceedings.
VACATED AND REMANDED
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