Barbour, Joyce A. v. Browner, Carol M.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 12, 1999 Decided July 13, 1999

No. 98-5408

Joyce A. Barbour,
Appellee

v.

Carol M. Browner, Administrator,
United States Environmental Protection Agency,
Appellant

---------

Consolidated with
No. 98-5409

Appeals from the United States District Court
for the District of Columbia
(No. 94cv00208)
(No. 95cv02013)

Michael J. Ryan, Assistant U.S. Attorney, argued the
cause for appellant. With him on the briefs were Wilma A.

Lewis, U.S. Attorney, and R. Craig Lawrence, Assistant U.S.
Attorney.

Janet Cooper argued the cause and filed the brief for
appellee.

Before: Silberman, Ginsburg, and Tatel, Circuit Judges.

Opinion for the Court filed by Circuit Judge Ginsburg.

Opinion concurring in part and dissenting in part filed by
Circuit Judge Tatel.

Ginsburg, Circuit Judge: Joyce Barbour sued the Environ-
mental Protection Agency under Title VII of the Civil Rights
Act of 1964, 42 U.S.C. s 2000e-2(a)(1), claiming that the
agency had refused to promote her because of her race
(black) and had failed to prevent an agency contractor from
harassing her. A jury found for her on both counts, and the
district court entered judgment accordingly. The EPA now
appeals, arguing that because neither of Barbour's claims was
supported by sufficient evidence, the district court erred by
denying the agency's motion for judgment as a matter of law.
We agree and hence reverse.

I. Background

Barbour began working for the EPA's Toxic Substances
Control Act "security staff" in 1990. She says that her
supervisor, Doug Sellers, told her when she started that he
would promote her from GS-12 to GS-13 after a year if she
performed well. Accordingly, when she was rated "exceeds
expectations" after her first annual review, she thought Sell-
ers would promote her immediately. Her job, however, is not
one that ordinarily allows promotion above GS-12, so Sellers
told her that she would have to demonstrate, by means of a
"desk audit," that she had responsibilities beyond those com-
mensurate with her GS-12 level. If the audit revealed that
she was performing GS-13 level tasks, Sellers assured her, a
promotion would follow. Claiming an audit unnecessary,
Barbour refused. She ultimately received the promotion
without having an audit, but not until 1996.

 Barbour contrasts her experience with that of Janette
Peterson, a white member of the security staff who received a
promotion to GS-13 after two years as a GS-12. Barbour
concedes, however, that Peterson's promotion followed a desk
audit. Moreover, although Peterson's job duties overlapped
to some degree with Barbour's, there is undisputed evidence
that Peterson had management responsibilities that Barbour
did not have. Barbour disputes the importance of these
differences, pointing out that the EPA occasionally waives the
desk audit requirement and that the additional duties Peter-
son had were of a sort usually assigned to a GS-14, not to a
GS-13, employee.

Barbour's harassment claim arises out of her supervision of
work performed by Computer Based Systems, Inc. (CBSI), a
contractor that performed data management services for the
EPA. Despite her position of authority, Barbour says, CBSI
employees consistently treated her with disrespect. One
CBSI supervisor directed a subordinate to drag his heels on a
request Barbour had made. Another turned her back on
Barbour during a contentious meeting. Still others would call
Sellers or Peterson to verify the accuracy of the instructions
Barbour had given them. When Barbour complained to
Sellers about CBSI's conduct, his response was half-hearted.
When white EPA employees, who had fewer problems with
CBSI, complained to Sellers, his intervention was more effec-
tive.

Barbour filed this suit in 1994. In March, 1997 the parties
tried the case to a jury, which returned a verdict in Barbour's
favor on both her failure to promote and her harassment
claims. The EPA appealed after the trial court denied its
motion for judgment as a matter of law.

II. Analysis

We review de novo a district court's disposition of a motion
for judgment as a matter of law, in the sense that we apply to
the jury's decision the same forgiving standard as did the
district court: The jury's resolution of a factual dispute will
stand if it is reasonably supported by the evidence. See, e.g.,

Barbour v. Merrill, 48 F.3d 1270, 1276 (D.C. Cir. 1995). As
to so-called "mixed questions of law and fact," which require
the application of a broad legal standard to particular facts,
see Pullman-Standard v. Swint, 456 U.S. 273, 289 n.19
(1982), there is no obvious way to decide whether determina-
tions made at the trial level should be reviewed deferentially
or independently. See Miller v. Fenton, 474 U.S. 104, 114
(1985) (standard of review "turn[s] on a determination that, as
a matter of the sound administration of justice, one judicial
actor is better positioned than another to decide the issue in
question"). Therefore, the reviewing court must make a
reasoned judgment whether the risk of an erroneous trial
level decision, or the need to clarify the governing law, or any
other value secured by review de novo, is warranted in view
of the added costs of such review. See, e.g., Ornelas v.
United States, 517 U.S. 690, 697 (1996) ("Independent review
[of probable cause determinations] is ... necessary if appel-
late courts are to maintain control of, and to clarify, the
[governing] legal principles"); Bose Corp. v. Consumers Un-
ion of United States, Inc., 466 U.S. 485, 505 (1984) (appellate
courts independently review jury determinations that speech
is unprotected by the First Amendment "both to be sure that
the speech in question actually falls within the unprotected
category and to confine the perimeters of any unprotected
category within acceptably narrow limits"). We touch upon
this issue because, as will be seen, the present appeal re-
quires us to review jury findings on two mixed questions of
law and fact, and we have not previously addressed the
standard of review applicable to either.

A. Failure to Promote

The first question is whether "all of the relevant aspects of
[Barbour's] employment situation were nearly identical" to
those of Janette Peterson, and therefore whether Peterson's
more rapid promotion could be said to indicate racial bias on
the part of the EPA. Mungin v. Katten Muchin & Zavis,
116 F.3d 1549, 1554 (D.C. Cir. 1997). We think the jury's
implicit finding in favor of Barbour on this issue should be
reviewed deferentially, although it necessarily entails a judg-
ment about which aspects of her employment situation were

"relevant." The issue does not seem to be of general impor-
tance, peculiarly in need of clarification, or otherwise deserv-
ing of specially probing review. Nor, contrary to the EPA's
representations, does either our decision in Mungin or our
decision in Neuren v. Adduci, Mastriani, Meeks & Schill, 43
F.3d 1507 (D.C. Cir. 1995), contain any indication that we
should review this question de novo. Like the mine run of
mixed questions, therefore, it should be resolved in the first
instance by a jury, whose decision should be disturbed on
appeal only if it could not reasonably be based upon the
evidence properly received. See United States v. Gaudin,
515 U.S. 506, 512 (1995).

In this case, however, we agree with the Government that
no fair comparison can be drawn between Barbour and
Peterson; hence, the jury's verdict cannot stand. As the
EPA points out, Barbour was responsible for only seven
"specific task management activities," all of which dealt with
"things which were in place and functioning." Peterson's
duties were both more numerous and more weighty; they
included some related to the development and implementation
of new policies. Furthermore, Peterson, unlike Barbour,
agreed to a desk audit in order to document that she per-
formed the duties of a GS-13 level job.

Barbour does not deny these differences; rather, she main-
tains that they do not relate to any "relevant aspect[ ]" of her
employment situation. First, she contends, the additional
duties Peterson performed were usually assigned to a GS-14
position; consequently, a rational juror could find those
duties irrelevant to the EPA's decision to promote her, and
not Barbour, to GS-13. In other words, a rational juror, we
are told, could determine that in deciding not to promote
Barbour the EPA did not rely upon Peterson's performance
of higher level responsibilities. This flies in the face of
reason. That Peterson was capable of handling more impor-
tant GS-14 level tasks is plainly relevant to whether she
would acquit herself adequately in a GS-13 level position--or
so an employer is entitled to believe.* Title VII, it bears

__________
* There is not a scintilla of evidence in the record to suggest that
the EPA--as opposed to Barbour--regarded the difference as

repeating, does not authorize a federal court to become "a
super-personnel department that reexamines an entity's busi-
ness decisions." Dale v. Chicago Tribune Co., 797 F.2d 458,
464 (7th Cir. 1986). This is precisely the role the court would
play, however, were the jury to ignore Peterson's GS-14 level
job duties on the basis of the argument Barbour advances.

Barbour next argues that her limited job duties could not
have been material to the EPA's decision because, without
having assumed any new ones, she received the promotion in
1996. In effect, she attempts to undercut the agency's expla-
nation of its decision by means of another comparison--not,
this time, between herself and Peterson, but between her
younger and her older selves. This approach is creative, but
it is at odds with Sellers' undisputed testimony that she
received the promotion because her performance improved
between 1991 and 1996. When she first requested the pro-
motion, she had been with the security staff for only one year.
When the promotion finally came, she had been on the job for
six. It is not unusual, of course, that an increase in produc-
tivity would accompany a five-fold increase in experience.**

__________
irrelevant. Our dissenting colleague contends that a rational juror
could find Peterson's additional job duties immaterial because Sell-
ers did not condition his promise to promote Barbour upon her
performance of such duties. [Dissent at 8]. This theory was not
advanced by Barbour herself, and hence is not properly before us.
In any event, it is unpersuasive. Whether Sellers kept his word to
Barbour is irrelevant as this is not a contract case. The only
relevant question is whether a jury could reasonably conclude that
the agency's failure to promote Barbour was the product of racial
discrimination, which Barbour tries to prove by comparing her
treatment to that accorded Peterson.

** Our dissenting colleague contends that Seller's reason for
promoting Barbour in 1996--her performance had improved--belies
his explanation for not promoting her in 1991, namely, her job
duties were too narrow. The EPA can hardly be faulted for having
failed to reconcile Sellers' statements, however, because Barbour
does not argue there is any conflict between them. Nor are the
statements inconsistent: At some point, an employee's increase in

 Finally, Barbour suggests that because the EPA has in the
past sometimes waived the desk audit requirement, a rational
juror could have doubted the bona fides of the agency's
refusal to promote her without one in 1991. We wonder; the
record contains evidence of only one instance in the early
1990's in which the agency waived the rule. Assuming for the
sake of the argument, though, that the jury could have found
the agency to have overstated the importance of a desk audit,
that would little avail Barbour.

While we usually afford "considerable ... significance" to
evidence showing that an employer's explanation of a chal-
lenged decision may be pretextual, Aka v. Washington Hosp.
Ctr., 156 F.3d 1284, 1292 (1998), two circumstances make this
case unusual. First, Barbour calls into doubt only part of the
EPA's proffered explanation for its refusal to promote her,
for the agency's assertion that it promoted Peterson more
rapidly because she performed more advanced job duties is
not in doubt. This case therefore stands in clear contrast to
Aka, which was premised upon evidence in the record from
which a reasonable juror could find that, absent invidious
discrimination, the challenged employment decision was inex-
plicable. See id. at 1292 ("Events have causes; if the only
explanations set forth in the record have been rebutted, the
jury is permitted to search for others, and may in appropriate
circumstances draw an inference of discrimination"). If
Barbour had produced evidence suggesting the EPA's state-
ments regarding the importance of a desk audit are not
merely incorrect, but intentionally deceitful, then this difficul-
ty could perhaps be overcome. See id. at 1289 n.3 (term
"pretext ... sometimes ... means that an employer's expla-
nation is incorrect, and sometimes it means both that the
explanation is incorrect and that the employer's real reason
was discriminatory"); St. Mary's Honor Center v. Hicks, 509
U.S. 502, 511 (1993) (evidence of pretext is particularly indica-
tive of bias if it supports a reasonable "suspicion of mendaci-
ty"). Evidence that the EPA invoked the desk audit require-

__________
productivity will come to outweigh the limited scope of her responsi-
bilities.

ment only when employees of an allegedly disfavored race
sought promotions, for instance, might demonstrate that the
agency was purposefully using the rule to cover up its dis-
criminatory practices. Here, however, the white employee
was obligated to undergo a desk audit, while the black
employee was subjected to treatment that was at first identi-
cal, and later preferable. That the agency applied its rule
more strictly to the white employee than to the black one
hardly demonstrates that it used the rule to discriminate
against blacks. See Mungin, 116 F.3d at 1556 (employer's
failure to follow its procedures, standing alone, does not
reveal intent to deceive).

Also removing this case from the purview of the rule in
Aka is Barbour's inability to adduce any other evidence. In
Aka, we assumed that, prior and in addition to showing
pretext, the plaintiff will have presented sufficient evidence to
make out a prima facie case of discrimination. See Aka, 156
F.3d at 1289 (evidence in Title VII case consists of "(1) the
plaintiff's prima facie case; (2) any evidence the plaintiff
presents to attack the employer's proffered explanation for its
actions; and (3) any further evidence of discrimination that
may be available to the plaintiff.... We are [here] faced
with the issue of when evidence in categories (1) and (2) alone
can suffice to support a jury verdict for the plaintiff"). In
this case, the assumption proves unwarranted: Barbour's sole
affirmative evidence of bias is the apples-and-oranges com-
parison she draws between herself and Peterson, which we
rejected above. Of course, the case has been tried, so the
question whether she established a prima facie case is now
irrelevant. See United States Postal Serv. Bd. of Governors
v. Aikens, 460 U.S. 711, 715 (1983). This does not mean,
however, that in our analysis of "the ultimate question of
discrimination vel non," id. at 714, we are obliged to pretend
that there is evidence supporting a prima facie case when in
fact there is not. In short, unlike the plaintiff in Aka,
Barbour has nothing to buttress her evidence of pretext.
Because that evidence standing alone has virtually no proba-
tive value, we conclude that the district court should have
granted the EPA's motion for judgment as a matter of law.

B. Harassment

Barbour's claim that the EPA failed adequately to protect
her from harassment by employees of CBSI requires us to
examine the second mixed question of law and fact raised by
this case, namely, whether the behavior of which she com-
plains was sufficiently egregious to violate Title VII. Not all
abusive behavior, even when it is motivated by discriminatory
animus, is actionable. Rather, a workplace environment be-
comes "hostile" for the purposes of Title VII only when
offensive conduct "permeate[s] [the workplace] with discrimi-
natory intimidation, ridicule, and insult that is sufficiently
severe or pervasive to alter the conditions of the victim's
employment and create an abusive working environment."
Oncale v. Sundowner Offshore Servs., Inc., 118 S. Ct. 998,
1001 (1998).

Whether the harassment in a particular case can be consid-
ered "severe or pervasive" is manifestly a mixed question of
law and fact; in order to answer it, one aligns the established
historical facts along side the legal rule, and determines
whether the facts satisfy the statutory standard. See
Pullman-Standard, 456 U.S. at 289 n.19; see also Jordan v.
Clark, 847 F.2d 1368, 1375 n.7 (9th Cir. 1988). As we have
seen, though, calling the issue mixed does not resolve the
more important question: How closely should the appellate
court review the fact-finder's determination that the harass-
ment was severe or pervasive? Compare id. (de novo review)
with Carr v. Allison Gas Turbine Division, 32 F.3d 1007,
1009 (7th Cir. 1994) (deferential review). Nor is it clear
whether de novo or deferential review would be preferable as
a matter of policy. On the one hand, it is often difficult under
current law to distinguish "simple teasing, offhand comments,
and isolated incidents," Faragher v. City of Boca Raton, 118
S. Ct. 2275, 2283 (1998), from the serious, discriminatory
conduct that violates Title VII. To the extent that de novo
appellate review could help flesh out the governing standard,
it would provide a significant benefit to employees and em-
ployers alike. On the other hand, because harassment cases
tend to be intensely fact-specific, a judicial determination that
particular offensive conduct was or was not "severe or perva-

sive" will often be of limited value to courts in subsequent
cases. Any clarification of the law to be had by virtue of de
novo review, therefore, may not be worth the additional
burden it entails. See Shira A. Scheindlin & John A. Elofson,
Judges, Juries and Sexual Harassment, __ Yale L. & Pol'y
Rev. __ (1999).

We need not resolve this issue today, however, because it is
clear that the EPA is entitled to judgment as a matter of law
regardless of the standard of review we apply. Barbour
asserts that employees of CBSI subjected her to a hostile
working environment from 1990 to 1992. To support this
claim, she relies primarily upon two incidents: the meeting at
which a CBSI employee turned her back on Barbour and
refused to answer any of her questions, and a CBSI supervi-
sor's intentionally slow response to one of her requests for
information. These episodes certainly reflect poorly upon the
professionalism of CBSI's employees. No reasonable juror,
however, could conclude that they were "sufficiently severe or
pervasive to alter the conditions of [Barbour's] employment."
See Sprague v. Thorn Americas, Inc., 129 F.3d 1355, 1366
(10th Cir. 1997) (five mild incidents of harassment over 16
month period did not create hostile working environment);
Saxton v. American Tel. & Tel. Co., 10 F.3d 526, 534 (7th Cir.
1993) (same with two incidents over three week period); cf.
Tomka v. Seiler Corp., 66 F.3d 1295, 1305 (2d Cir. 1995)
(sexual assault sufficiently severe to create hostile work envi-
ronment).

Barbour tries to fill the hole in her case by pointing to
testimony that CBSI employees were habitually uncoopera-
tive and unfriendly. Much of this consists of conclusory, and
therefore unhelpful, statements that CBSI employees had
less respect for Barbour than they had for Peterson. See
Johnson v. City of Fort Wayne, 91 F.3d 922, 938 (7th Cir.
1996) ("[S]pecific allegations of discriminatory or harassing
conduct directed at [plaintiff]" required to show hostile work
environment). She does complain specifically that employees
of CBSI, in an attempt to have the deadlines she imposed
relaxed, would often ask Sellers to confirm her instructions.
It is hardly surprising, however, that a contractor would try

to play off one of its Government overseers against another in
this way. Barbour's protestation is like to that of a waitress
who complains that her customers are sometimes rude: treat-
ment that would be objectionable in other contexts is an
inevitable part of the job. See Oncale, 118 S. Ct. at 1003
(application of severe or pervasive test "requires careful
consideration of the social context in which particular behav-
ior occurs and is experienced by its target"). Although
CBSI's gamesmanship, like its other questionable behavior,
was probably regrettable, it subjected Barbour to little if
anything more serious than the "ordinary tribulations of the
workplace." Faragher, 118 S. Ct. at 2284. Consequently, the
district court should have awarded the EPA judgment as a
matter of law on this claim as well.

III. Conclusion

For the foregoing reasons, the judgment of the district
court is

Reversed.

 Tatel, Circuit Judge, concurring in part and dissenting in
part:

This court's opinion leaves no doubt which way my col-
leagues would have voted on Barbour's failure-to-promote
claim had they been jurors. Our job as appellate judges,
however, is not to weigh the evidence ourselves, but simply to
assess its legal sufficiency. Because I find sufficient evidence
in the record to support the jury's failure-to-promote verdict,
I cannot join that portion of the court's opinion. In the end,
however, I too would reverse, but for a different reason: I
agree with EPA that the district judge made improper and
prejudicial comments in the jury's presence.

In a sense, the jury's role in this case has now been
usurped twice: first by the district judge, who jeopardized its
impartiality with his prejudicial comments, and now by my
colleagues, who have substituted their judgment for the ju-
rors'. Because both sides were entitled to have this discrimi-
nation dispute resolved by the jury, see 42 U.S.C.
s 1981a(c)(1) (1994), I respectfully dissent.

Failure to Promote

Beginning with the court's discussion of the standard of
review governing Barbour's failure-to-promote claim, I think
my colleagues' formulation fails to capture the very limited
scope of our role. It has long been settled law, as the court
seems to acknowledge, see Maj. Op. at 5, that the standard of
review governing the jury's verdict is "whether the evidence
was sufficient for a reasonable jury to have reached [it]."
Barbour v. Merrill, 48 F.3d 1270, 1276 (D.C. Cir. 1995); see
also Swanks v. WMATA, No. 98-7115, 1999 WL 397413 (D.C.
Cir. June 18, 1999). Nowhere in its opinion, however, does
the court acknowledge that sufficiency challenges require us
to view the evidence "in the light most favorable" to the
prevailing party, and to give the prevailing party "the advan-
tage of every fair and reasonable inference that the evidence
may justify," Coburn v. Pan American World Airways, Inc.,

711 F.2d 339, 342 (D.C. Cir. 1983) (internal quotation marks
and citation omitted). Judgment as a matter of law is
appropriate only "if the evidence, together with all inferences
that can reasonably be drawn therefrom, is so one-sided that
reasonable [jurors] could not disagree on the verdict." Hay-
man v. National Academy of Sciences, 23 F.3d 535, 537 (D.C.
Cir. 1994) (internal quotation marks and citation omitted).
Bearing this highly deferential standard in mind, I turn to the
record in this case.

In 1990, Douglas Sellers, then section chief of EPA's Public
Information Section, began recruiting Joyce Barbour, an
African-American who had worked for EPA for twelve years,
to join his staff. See Trial Tr. 3/18/97 at 34, 38. Sellers
needed someone to take over contract oversight duties that
previously had been performed by Janette Peterson, a white
employee who had worked for EPA for five years. See Trial
Tr. 3/19/97 at 23-24, 42-45. Peterson had performed the
contract oversight job for two years, first as a GS-12 and
then as a GS-13. See id. at 28.

When Barbour took over, she was given a GS-12 grade.
She was also given a position description that EPA concedes
had nothing to do with her actual job; rather, it had been
written for a group of employees performing other tasks in a
different section, and Barbour testified without contradiction
that she never performed any of the duties detailed in it. See
Trial Tr. 3/18/97 at 40. An EPA personnel officer explained
that this position description had not been properly updated
following a 1986 division reorganization. See Trial Tr. 3/19/97
at 119-20.

In addition to the erroneous GS-12 position description,
Sellers gave Barbour a set of "performance standards"--
goals against which her performance would be measured--
that he fashioned based upon Peterson's GS-13 position de-
scription. See Trial Tr. 3/20/97 at 58; Trial Tr. 3/18/97 at 113.
Sellers devised Barbour's performance standards simply by
photocopying the standards he had written for Peterson as a
GS-13, neglecting on several pages even to change the grade
from Peterson's GS-13 to Barbour's GS-12. See id. at 42.

 Although Barbour did not immediately complain to Sellers
about being a GS-12, she testified that Sellers took it upon
himself to promise that he would promote her to GS-13 if she
performed well for a year:

He brought it up. As a matter of fact, I never brought it
up because I didn't have to. He always did. When I
first took the job, he told me, "Joyce, if you're in the job
for a year and have your first performance evaluation, I
see no reason why I can't promote you, and I will." And
throughout the year, as time went on, he constantly
reminded me of that.

Id. at 44; see also id. at 109, 136. Never flatly denying that
he made these statements, Sellers testified only that he "d[id]
not remember ever promising her a promotion." Trial Tr.
3/20/97 at 11.

At Barbour's first annual performance review in October
1991, Sellers rated her as "[e]xceeds expectations," just a few
points below "outstanding." See Trial Tr. 3/18/97 at 45.
According to Barbour, Sellers again brought up the prospect
of promoting her to GS-13, telling her, " 'Joyce, I see no
reason why I can't initiate promoting you in three to four
months.' " Id. When Barbour reminded Sellers of his earli-
er promise to promote her upon her first evaluation, not
months thereafter, Sellers instructed her to consult Sarsah
McClean, the personnel officer, to find out what needed to be
done to secure a promotion. See id. at 45-46. McClean told
Barbour that because her position description (the concededly
erroneous one) did not allow for promotion past GS-12,
Sellers could only promote her either through a process
called "accretion of duties," or by creating a new GS-13
position for which she would have to compete. See Trial Tr.
3/19/97 at 114. Under the accretion-of-duties route, the em-
ployee's supervisor writes a memo to the personnel officer
explaining that the employee is actually performing duties at
a level higher than the grade specified in the position descrip-
tion. See id. Although this process often includes a desk

audit--where the personnel officer sits down with the employ-
ee and examines the duties she is performing--the supervisor
can request waiver of a desk audit. See id. at 121-22. From
EPA's Office of Personnel Management, Barbour confirmed
that an employee can obtain an accretion-of-duties promotion
without a desk audit so long as the supervisor agrees that the
employee is actually performing duties at a higher grade
level. See Trial Tr. 3/18/97 at 47.

Two months after her performance review, Barbour testi-
fied, she tried to confront Sellers about the status of her
promotion. See id. Although he initially attempted to avoid
her, they finally got together in December, at which time
Sellers told her that she would have to have a desk audit.
See id. at 48-49. When Barbour explained that both McCle-
an and OPM confirmed that he had authority to waive the
desk audit requirement, Sellers asked her to write a memo-
randum justifying her promotion to GS-13. See id. at 49.

In response, Barbour prepared a memorandum dated Feb-
ruary 4, 1992, which relied primarily on the fact that she had
the same performance standards that Peterson had when
Peterson was a GS-13. See id. at 49-50. Claiming the
memorandum was insufficient, Sellers told Barbour that he
needed something detailing the duties she was actually per-
forming. See Trial Tr. 3/20/97 at 16. Barbour prepared a
second memorandum, this time appending to it a copy of
Peterson's GS-13 position description, which described the
duties Peterson performed before Barbour took over her job.
This second memorandum expressly asserted that Barbour
was performing each task itemized in Peterson's GS-13 posi-
tion description. See Trial Tr. 3/19/97 at 161.

In May, Sellers wrote Barbour a memorandum of his own,
agreeing that Peterson's GS-13 position description was the
relevant comparison, see Trial Tr. 3/20/97 at 17-18, but con-
cluding that he could not recommend her for promotion
because she was not performing all of the duties detailed in
that position description, see id. at 16-17. Sellers's memoran-
dum listed seven specific duties that, if Barbour began per-

forming, would justify her promotion in six months. See id.
at 17. Barbour testified not only that she was already
performing most of those duties, but also that any duties that
she was not performing Peterson had not performed either.
See id. at 41-45. Four and a half years later, without
assuming any additional duties, and without undergoing a
desk audit, Barbour received a promotion to GS-13. See
Trial Tr. 3/18/97 at 51, 53.

EPA makes three arguments challenging the sufficiency of
Barbour's evidence, none of which is persuasive. First, the
agency argues that no reasonable juror could have found race
discrimination based on a comparison between the experi-
ences of Barbour and Peterson because, unlike Barbour,
Peterson obtained her promotion by submitting to a desk
audit. However, not only did EPA's personnel officer testify
that a supervisor can waive a desk audit, see Trial Tr. 3/19/97
at 121-22, but the record contains at least three examples of
employees in Barbour's section who were promoted to GS-13
without desk audits: Sarsah McClean, Kimberly Orr, and
Barbour herself, see id. at 109, 115. To be sure, only one of
these three non-desk audit promotions occurred "in the early
1990's." Maj. Op. at 7. That the other two promotions did
not occur until 1996, however, is irrelevant absent evidence
that EPA's desk audit policy changed in the interim. EPA
offered no such evidence. Indeed, toward the end of the trial
EPA's lawyer obtained leave from the district court to call an
additional witness to testify on precisely this subject, see Trial
Tr. 3/19/97 at 166, but inexplicably never did.

Not only does the promotion of these three employees to
GS-13 without desk audits undercut EPA's argument that
Barbour and Peterson were not similarly situated, but it
amounts to affirmative pretext evidence that reasonably could
have led the jury to doubt the agency's truthfulness. Assum-
ing the role of jurors, however, my colleagues disregard
Barbour's evidence that EPA's desk audit justification was
false, concluding instead that the justification could not have

been "intentionally deceitful" because EPA applied the puta-
tive desk audit rule to a white employee, not just to African-
American employees. See Maj. Op. at 7-8. It is true that
Aka v. Washington Hospital Center suggests two hypotheti-
cal situations in which no reasonable juror could infer dis-
crimination despite the demonstrated falsity of the employer's
asserted justification: where "the plaintiff shoots himself in
the foot" by proving improvidently that the employer's real
motivation was something other than discrimination; or
where the evidence undercutting the employer's stated justifi-
cation is weak and there is also "abundant independent
evidence in the record that no discrimination has occurred,"
such as evidence that the employer "has a strong record of
equal opportunity employment." 156 F.3d 1284, 1291 (D.C.
Cir. 1998) (en banc). Neither hypothetical bears any relation-
ship to the facts of this case. Barbour never shot herself in
the foot, and not only did EPA fail to introduce any evidence
of a "strong" EEO record, but Barbour actually introduced
evidence that the agency's EEO record was poor. See infra
p. 11.

This court now creates a third situation in which evidence
disproving an employer's asserted justification cannot support
an inference of discrimination: where the false justification
has not been applied exclusively to African-Americans. This
proposition assumes that an employer who tells the same lie
to two different employees necessarily does so for the same
reason. Although this assumption may well be accurate in
some situations, it may be inaccurate in others. Under Aka,
the jury was entitled to conclude that EPA's false desk audit
justification--viewed in light of all of the other record evi-
dence of discrimination, see infra pp. 7-12--was pretext for
race discrimination even though as applied to Peterson it was
not. My colleagues' novel holding to the contrary creates an
impenetrable legal safe harbor from Title VII liability: An
employer who has denied promotion to a minority employee
ostensibly because of tardiness, writing deficiency, or inability
to get along with others, for example, can render legally
irrelevant all evidence demonstrating the falsity of that justi-

fication merely by asserting that it has denied promotion to a
white employee for the same reason.

EPA next argues that no reasonable juror could have found
race discrimination based on a comparison between the expe-
riences of Barbour and Peterson because "Barbour failed to
refute Sellers' and Peterson's testimony that the duties of the
two women differed." Appellant's Br. at 16-17. EPA insists
that the record demonstrates that Peterson performed fifteen
task management duties as a GS-13 and that Barbour took
over only seven, see id. at 17, but the portion of Sellers's
testimony it cites belies this assertion. While it is true that
EPA's entire contract with CBSI entailed a total of fifteen
task management functions, no one--not even Peterson--
testified that Peterson performed all fifteen. Indeed, the
obvious gist of Sellers's testimony was that Peterson was
performing eight task management functions--not fifteen--
and that when Barbour took over she inherited all but one.
See Trial Tr. 3/19/97 at 45-46; see also id. at 88-89. Asked at
oral argument how many of Peterson's task management
functions Barbour would have to have performed before
jurors could reasonably conclude that she and Peterson were
"nearly identical" in all relevant aspects, EPA's counsel,
believing erroneously that Peterson had been performing all
fifteen duties, conceded that thirteen out of fifteen would
certainly suffice. Why then isn't it sufficient for my col-
leagues that Barbour in fact took over seven out of eight?

To be sure, the record reflects that in addition to those task
management functions that Barbour did inherit, Peterson had
been performing various GS-14 level policy functions that
Barbour did not inherit. According to my colleagues, that
these policy functions are GS-14 functions, not GS-13 func-
tions, is of no significance because the fact "[t]hat Peterson
was capable of handling more important GS-14 level tasks is
plainly relevant to whether she would acquit herself ade-
quately in a GS-13 level position--or so an employer is
entitled to believe." Maj. Op. at 5. The question before us,
however, is not what this court thinks an employer is entitled

to believe, but whether the jury reasonably could have be-
lieved that the fact that Barbour performed no GS-14 level
policy functions was not the real reason why EPA refused to
promote her to GS-13. The record contains ample evidence
to support such a conclusion.

To begin with, when Sellers first hired Barbour, he did not
tell her, "Joyce, if you're in this job for a year and have your
first performance evaluation, and if I determine at that time
that you are performing not only GS-13 level functions but
also GS-14 level policy functions like your friend Janette
Peterson, I see no reason why I can't promote you, and I
will." Quite to the contrary, the jury heard testimony that
Barbour's promised promotion in no way hinged on her
performing GS-14 level functions. See Trial Tr. 3/18/97 at 44,
109, 136. In his May 1992 memorandum responding to
Barbour's promotion request, moreover, Sellers made no
mention of her failure to take on GS-14 level policy duties;
his memo focused exclusively on duties in Peterson's GS-13
position description that he said Barbour would have to
perform for six months in order to earn a promotion. See
Trial Tr. 3/20/97 at 16-17. And in the end Barbour was
promoted to GS-13 without taking on any additional GS-14
level policy duties. See Trial Tr. 3/18/97 at 52-53. If by
pointing out that "this is not a contract case" my colleagues
mean to suggest that a supervisor's statements regarding
promotion criteria are, as a matter of law, irrelevant to the
question of pretext in Title VII cases, see Maj. Op. at 6 n.*,
they are mistaken.

The court's conclusion that Barbour's eventual promotion
without assuming additional duties is somehow irrelevant
because her performance may have improved between 1991
and 1996 is also mistaken. See id. at 6. Just as Sellers's
testimony regarding Barbour's improvement supports my
colleagues' belief about why EPA eventually promoted her, it
likewise supports the jury's apparent conclusion that EPA
lied about its justification for not promoting her in the first
place. If Sellers had testified that he refused to promote

Barbour in 1991 because her performance of existing duties
needed improvement--not that she needed to undergo a desk
audit and take on additional duties (as he actually testified)--
this court's view of the evidence might well have carried the
day in the jury room. Weighing the evidence, my colleagues
conclude for themselves that Sellers's varying statements
were not "inconsistent," id. at 6 n.**, but this court has no
authority to ignore the jury's totally plausible conclusion that
they were inconsistent. To be sure, the court correctly
observes that "Barbour does not argue there is any conflict
between" Sellers's statements, id., but she made no such
argument for a good reason: EPA itself never argued that it
refused to promote her because her performance needed
improvement--not at trial, not in its opening appellate brief,
not in its reply brief, and not at oral argument.

Finally, EPA argues that no reasonable juror could have
found race discrimination based on a comparison between the
experiences of Barbour and Peterson because Peterson was a
GS-12 task manager for two years before being promoted to
GS-13, whereas Barbour sought her promotion after only one
year. Once again, however, the jury reasonably could have
concluded from abundant record evidence that this fact had
nothing to do with Barbour's non-promotion. In testimony
that the jury was entitled to credit, Barbour said that Sellers
expressly promised her that she would be promoted after one
year, not two. See Trial Tr. 3/18/97 at 44, 109, 136. Then
after one year, Sellers told her he would promote her in three
to four more months, not twelve more months. See id. at 45.
And EPA ultimately took six years, not two, to promote
Barbour to GS-13. See id. at 51.

My colleagues give two reasons for distinguishing this case
from Aka. First, they say that unlike the plaintiff in Aka,
"Barbour calls into doubt only part of the EPA's proffered
explanation for its refusal to promote her." Maj. Op. at 7.
But Barbour actually called into doubt all of EPA's proffered
explanations: the putative desk audit requirement, which

Barbour demonstrated was not just waivable in theory but
actually waived for at least three employees in her section;
the fact that Peterson performed some GS-14 policy func-
tions, which Barbour demonstrated had nothing to do with
her eligibility for promotion to GS-13; and the fact that
Peterson had an additional year of experience as a GS-12
task manager, which Barbour also demonstrated had nothing
to do with her GS-13 eligibility. See supra pp. 5-9. This
case is thus just like Aka. There, as here, the record
contained evidence from which a reasonable juror could con-
clude that the challenged employment decision was inexplica-
ble absent invidious discrimination. As Aka said: "Events
have causes; if the only explanations set forth in the record
have been rebutted, the jury is permitted to search for
others, and may in appropriate circumstances draw an infer-
ence of discrimination." 156 F.3d at 1292.

As its second ground for distinguishing Aka, the court says
that Barbour's "apples-and-oranges" comparison of herself
and Peterson fails to establish even a prima facie case of race
discrimination. Maj. Op. at 8. This is a curious point given
my colleagues' concession that the entire burden-shifting
paradigm is now irrelevant and that the only question before
the jury was the " 'ultimate question of discrimination vel
non.' " Id. at 9 (quoting United States Postal Serv. Bd. of
Governors v. Aikens, 460 U.S. 711, 715 (1983)). But even
taking the comparison issue on the court's terms, the question
is simply whether the jury reasonably could have concluded
from the record that Barbour and Peterson were similarly
situated in all relevant respects. Surely a hypothetical jury
would be free to conclude that two employees were similarly
situated for purposes of a given promotion even if the employ-
er introduced evidence that one was more polite or better
read than the other, so long as the record reasonably sup-
ported the conclusion that politeness or erudition were not
relevant promotion criteria. The record in this case amply
supports the jury's apparent conclusion that Barbour was

similarly situated to Peterson in all respects relevant to the
GS-13 position.

Also missing from the court's Aka discussion is any men-
tion of the fact that in addition to Barbour's evidence that she
and Peterson were similarly situated with respect to the GS-
13 position, and in addition to her evidence that each of
EPA's proffered justifications was pretextual, Barbour testi-
fied that EPA has a poor equal employment opportunity
record with respect to African-Americans in her division:

The history of the program has been that minorities
have been pretty much on the lower end of it. Out of
400 to 500 staff people, you only have, I'd say, maybe two
section chiefs who were at the 14 level. One was tempo-
rary. 13's in IMD out of my division, 50, 60 people,
maybe four--maybe five or six 13's who were African-
American, if that many.

Trial Tr. 3/18/97 at 59. Perhaps there is a good answer to
Barbour's assertion. For example, perhaps these numbers--
five or six African-American GS-13s out of fifty or sixty
total GS-13s--actually reflect the availability of African-
Americans in the relevant labor market. But EPA never
offered any such evidence, nor did it move to strike Barbour's
testimony as either irrelevant or lacking in foundation. As
Aka made clear, the jury could properly have considered
Barbour's unrebutted testimony in determining whether EPA
failed to promote her because of her race. See Aka, 156 F.3d
at 1295 n.11.

Of course Title VII "does not authorize a federal court to
become 'a super-personnel department that reexamines an
entity's business decisions.' " Maj. Op. at 6 (quoting Dale v.
Chicago Tribune Co., 797 F.2d 458, 464 (7th Cir. 1986)). But
neither does Title VII authorize federal judges to become
super-jurors, weighing evidence and drawing independent
conclusions regarding the ultimate question of discrimination.
I have certainly seen stronger Title VII cases than this one;
indeed, had I been a juror, I might well have cast my vote for
the employer. But acknowledging that the merits of this case

are debatable is a far cry from holding that no rational person
could agree with the jury's conclusion.

Racial Harassment

I do agree with my colleagues that the record contains
insufficient evidence to support the jury's conclusion that
CBSI's treatment of Barbour rose to the level of actionable
racial harassment. Even giving Barbour "the advantage of
every fair and reasonable inference that the evidence may
justify," Coburn, 711 F.2d at 342, the most this record
demonstrates is that CBSI employees sometimes put Bar-
bour's requests at the bottom of the pile, and that on one
occasion a CBSI employee turned her back on Barbour in a
meeting. Though we must not reverse a jury verdict unless
the evidence "is so one-sided that reasonable [jurors] could
not disagree," Hayman, 23 F.3d at 537, I cannot fathom on
what basis the jury could have determined that Barbour's
" 'workplace [was] permeated with discriminatory intimi-
dation, ridicule, and insult that [was] sufficiently severe or
pervasive to alter the conditions of [her] employment and
create an abusive working environment.' " Oncale v. Sun-
downer Offshore Services, Inc., 118 S. Ct. 998, 1001 (1998)
(quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)).

Perhaps the answer is this: The jury never made that
determination because it was never instructed regarding the
meaning of the legal term of art "harassment." The only
instruction the district court gave the jury with respect to
Barbour's harassment claim was the following:

[T]he plaintiff must show ... that [she] gave notice to
the defendant ... that racial harassment was being
engaged in by the corporation or by the employees of the
contractor, and that the defendant failed to take ...
prompt and adequate remedial action against it.

Trial Tr. 3/21/97 at 46. The jury thus had no way of knowing
that to rule for Barbour, it had to find not just "harassment,"
but "severe or pervasive" harassment. Although EPA does
not raise this issue, I suspect the district court's incomplete

instruction may explain the jury's untenable harassment ver-
dict.

The District Court's Comments on the Evidence

Since I would affirm the district court's denial of judgment
as a matter of law on Barbour's failure-to-promote claim, I
must address EPA's alternative argument that it is nonethe-
less entitled to a new trial because the district court preju-
diced the jury through improper comments on the evidence.
Because I agree with EPA that the district court's comments
were prejudicial, I would reverse and remand for a new trial.

Federal judges have "inherent authority ... to comment on
the evidence," United States v. Liddy, 509 F.2d 428, 438 (D.C.
Cir. 1974), but that authority "is not arbitrary and uncon-
trolled, but judicial, to be exercised in conformity with the
standards governing the judicial office," Quercia v. United
States, 289 U.S. 466, 470 (1933). Judges must " 'use great
care that an expression of opinion upon the evidence should
be so given as not to mislead, and especially that it should not
be one-sided.' " Wabisky v. D.C. Transit Sys., Inc., 326 F.2d
658, 659 (D.C. Cir. 1963) (quoting Quercia, 289 U.S. at 470).

Applying this standard, I believe the trial judge crossed the
line by making statements that the jury could have viewed as
signaling not just his hostility toward the agency, but also
that he believed the evidence demonstrated that Barbour was
a victim of discrimination. For example, in overruling an
EPA objection during Barbour's cross-examination, the dis-
trict judge said this:

Let me just give you the reason why I overruled your
objection. As far as I am concerned, in these discrimina-
tion cases coming out of federal agencies, the agencies
have all the powerful people in there, from the director
or chairman or administrator on down; they have all the
records; they have all the files; they make up the rules;
and they can go on and on, and the person who is
complaining about them is usually alone, with just one
lawyer and maybe a couple of people who also claim they
are discriminated against. When they come to court,

 which is the first time that they come to a place where
justice is done--where people don't protect each other,
where people don't agree with each other from the lowest
to the highest--here they get a fair shake and here they
get a chance to talk, and they are going to get a chance
to talk as long as I am here whether you object to it or
not.

Trial Tr. 3/20/97 at 54-55. At another point, the judge
responded to the testimony of a defense witness (an EPA
employee) by stating: "No wonder the public and the Con-
gress are upset about agencies in Washington." Id. at 38.
In a trial like this, where the agency's veracity was central to
its defense, I can hardly imagine anything more prejudicial
than for the judge to tell the jury that agencies like EPA
"have all the power[ ]," that they "make up the rules," that
they cover up for each other through lies, that they refuse to
do justice until hauled into court, and that the public no
longer has any confidence in them.

The judge also challenged Sellers's credibility: "That's
under oath? You are testifying under oath?" Id. at 13.
Because Barbour's failure-to-promote claim ultimately hinged
on Sellers's credibility, our statement in United States v.
Tilghman applies here as well: "Because juries, not judges,
decide whether witnesses are telling the truth, and because
judges wield enormous influence over juries, judges may not
ask questions that signal their belief or disbelief of wit-
nesses." 134 F.3d 414, 416 (D.C. Cir. 1998).

District judges certainly enjoy wide discretion to manage
trials, including questioning witnesses aggressively and com-
menting on the evidence. In fact, most of the judge's com-
ments that EPA challenges were not at all inappropriate.
But because of the particular comments discussed above, I
think the district court went too far. Indeed, the judge's
comments may well help explain why the jury ruled for
Barbour on this relatively weak (though sufficient) record.
Just as Barbour deserved to have her case decided by the
jury without improper judicial interference, so did EPA.