United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 5, 1999 Decided January 4, 2000
No. 97-5093
Kenneth L. Cones,
Appellant
v.
Donna E. Shalala, Secretary,
Department of Health & Human Services,
Appellee
Appeal from the United States District Court
for the District of Columbia
(No. 96cv00701)
Roland G. Schroeder argued the cause for appellant. With
him on the briefs was William D. Hopkins.
Diane M. Sullivan, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Wilma A.
Lewis, U.S. Attorney, and R. Craig Lawrence and Kimberly
N. Brown, Assistant U.S. Attorneys.
Before: Williams, Ginsburg and Tatel, Circuit Judges.*
Opinion for the Court filed by Circuit Judge Tatel.
Tatel, Circuit Judge: In this case, we consider a federal
government employee's complaint that his agency denied him
a promotion on the basis of race and then retaliated against
him when he complained. Because we disagree with the
district court's conclusion that appellant failed to establish a
prima facie case of discrimination and retaliation, and because
the record contains sufficient evidence from which a jury
could infer that the agency's stated reason for selecting a
white person was pretext for racial discrimination, we reverse
the district court's grant of summary judgment to the govern-
ment.
I
Appellant Kenneth Cones, an African American, began
working for the federal government in 1970 as a GS-1.
Advancing up the career ladder during the next two decades,
Cones eventually became a GS-14 Special Assistant to the
Director of the Division of Buildings Management and Tele-
communications, part of the Office of the Assistant Secretary
for Management and Budget ("ASMB") at the Department of
Health and Human Services. At ASMB, Cones received
uniformly excellent evaluations and applied for several pro-
motions but was never selected. Each time HHS filled the
position with a white person.
In 1992, the head of ASMB, Assistant Secretary Arnold
Tompkins, also an African American, reorganized ASMB,
dissolving the Office of Management and Acquisition where
Cones was working and dividing its functions between two
newly created entities. One of the new entities, the Adminis-
trative Service Center ("ASC"), was given responsibility for
day to day physical operations of HHS, including building
maintenance, management of the wellness center, and special
program coordination. Tompkins detailed Cones to serve as
__________
* Circuit Judge Ginsburg was present for oral argument but took
no part in either the consideration or the decision of this case.
Acting Director of ASC. Although the new position was
rated GS-15 and Cones was still a GS-14, personnel regula-
tions permitted Tompkins to detail Cones to the position for
up to 120 days without using the competitive selection pro-
cess. See 5 C.F.R. s 335.103(c)(1)(ii). Tompkins testified
that he detailed Cones to the Acting Director position be-
cause ASMB had been criticized for having a poor EEO
record and also because he thought Cones deserved an oppor-
tunity to enhance his skills.
A month and a half into Cones' detail, the 1992 Presidential
election occurred. An appointee of President Bush, Tomp-
kins knew that his tenure as Assistant Secretary would soon
end, so he decided that it would be "inappropriate" to adver-
tise or permanently fill the ASC Director position before he
left office. After President Clinton's inauguration, and after
Elizabeth James, a white female and ASMB's highest ranking
career employee, became Acting Assistant Secretary, Cones
requested that the ASC Director position be competitively
advertised so that he could remain in it either permanently or
at least for an extended period of time. James refused,
instead detailing a white female GS-14, Rosalie Reggetz, to
the position for 120 days. In response, Cones filed an
informal complaint of discrimination with HHS's Equal Em-
ployment Opportunity Office. Although the EEO Counselor
recommended reinstating Cones to the ASC Director position,
HHS refused. Cones then filed a formal complaint of dis-
crimination, to which he later added a retaliation claim based
on the Department's failure to consider him for a different
acting director position.
During this entire period, ASMB was operating under an
"informal" hiring freeze, meaning that senior management
made every effort to avoid hiring new personnel. On Febru-
ary 10, President Clinton issued an Executive Order estab-
lishing a goal of eliminating 100,000 federal government posi-
tions. See Executive Order No. 12,839, 58 Fed. Reg. 8515
(1993). In relevant part, the Executive Order reads as
follows:
Each executive department or agency with over 100
employees shall eliminate not less than 4 percent of its
civilian personnel positions ... over the next 3 fiscal
years. The positions shall be vacated through attrition
or early out programs established at the discretion of the
department and agency heads. At least 10 percent of
the reductions shall come from the Senior Executive
Service, GS-15 and GS-14 levels or equivalent.
Id.
Several months later, President Clinton's nominee for As-
sistant Secretary, Kenneth Apfel, was confirmed and took
office. Because Reggetz's 120 day detail was about to end,
and because her appointment, like Cones', could not be re-
newed, another ASMB employee, Peggy Dodd, also a white
female, was selected to serve as Acting Director for 120 days.
Unlike Cones and Reggetz, Dodd was a GS-15 and had been
transferred laterally rather than promoted to the position.
As a result, personnel regulations permitted HHS to appoint
her as permanent ASC Director without competitively adver-
tising the position. See 5 C.F.R. s 335.103(c)(3)(v). This
HHS did on December 12.
Cones then amended his still-pending EEO complaint, add-
ing an allegation that HHS had discriminated and retaliated
against him by failing to consider and hire him for the
permanent ASC Director position. After his EEO complaint
had been pending for well over a year, Cones filed suit in the
United States District Court for the District of Columbia
charging race discrimination and retaliation with respect to
the permanent position. He also charged discrimination in
connection with the Department's failure to hire him for other
positions dating back to 1989.
Granting summary judgment for the Department, the dis-
trict court found that Cones had failed to establish a prima
facie case of discrimination with respect to the ASC Director
position because Dodd, the white person selected to fill the
position, had been laterally transferred rather than promoted.
See Cones v. Shalala, 945 F. Supp. 342, 349 (D.D.C. 1996).
Alternatively, the district court found, HHS had articulated a
non-discriminatory reason for selecting Dodd--that it was in
the midst of downsizing--and Cones had failed to present
sufficient evidence to establish that this reason was pretext
for discrimination. Id. The district court dismissed Cones'
retaliation claim, again concluding that Cones had established
neither a prima facie case nor pretext. Id. at 350. As to the
pre-1993 claims of discrimination, the district court found
that Cones had failed timely to file an EEO complaint. Id. at
346-47. Cones moved for reconsideration of the dismissal of
his claims related to the ASC Director position. The district
court denied the motion.
Cones appeals only the district court's grant of summary
judgment with respect to the ASC Director position. Our
review is de novo. See Tao v. Freeh, 27 F.3d 635, 638 (D.C.
Cir. 1994) ("Our review of the grant of summary judgment is
de novo, applying the same standards as the district court").
II
Title VII of the Civil Rights Act of 1964, as amended,
makes it unlawful for the federal government to discriminate
in employment on the basis of race. 42 U.S.C. s 2000e-16.
Where, as here, the record contains no direct evidence of
discrimination, we employ the familiar burden shifting frame-
work of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802
(1973). See Brown v. Brody, No. 97-5347, slip op. at 8-9
(D.C. Cir. Dec. 21, 1999) (McDonnell Douglas test applies to
federal employees' Title VII claims). To establish a prima
facie case, the plaintiff must show that (1) he is a member of a
protected class; (2) he applied for and was qualified for an
available position; (3) despite his qualifications he was reject-
ed; and (4) either someone not of his protected class filled the
position or the position remained vacant and the employer
continued to seek applicants. See McDonnell Douglas, 411
U.S. at 802; Kolstad v. American Dental Association, 108
F.3d 1431, 1436 (D.C. Cir. 1997), rev'd in part on other
grounds en banc, 139 F.3d 958 (D.C. Cir. 1998), en banc
opinion vacated, 119 S. Ct. 2118 (1999). Of particular signifi-
cance to this case, the burden of establishing a prima facie
case "is not onerous." Texas Dept. of Community Affairs v.
Burdine, 450 U.S. 248, 253 (1981). Its function is limited to
eliminating the two most common nondiscriminatory reasons
for a plaintiff's rejection: "an absolute or relative lack of
qualifications or the absence of a vacancy in the job sought."
International Bhd. of Teamsters v. United States, 431 U.S.
324, 358 n.44 (1977). "Elimination of these reasons for the
refusal to hire," the Supreme Court has explained, "is suffi-
cient, absent other explanation, to create an inference that
the decision was a discriminatory one." Id. With this stan-
dard in mind, we turn to the facts of this case.
In granting summary judgment for HHS, the district court
held that in order to establish a prima facie case, it was not
sufficient for Cones to have demonstrated that a white person
had been selected for the position. The district court re-
quired Cones to show that a white person had been promoted
to the position. Cones, 945 F. Supp. at 349. Because Dodd
had been laterally transferred into the position--i.e., not
promoted--the district court concluded that Cones had failed
to establish a prima facie case. Id. We agree with Cones
that this ruling adds undue weight to his relatively light
prima facie burden.
The district court, as well as HHS in defending the district
court's action, seems to have conflated two different types of
promotion cases. One concerns employees like Cones who
claim to have been denied promotions to vacant positions. In
such cases, the relevant inquiry is controlled by the precise
terms of McDonnell Douglas: Was the plaintiff rejected for
the position and a person outside of his protected class
selected? As we said in Kolstad, "[w]here sex discrimination
in promotion is alleged, a plaintiff proves her prima facie case
by showing that she is female, that she was refused a position
for which she applied and was qualified, and that the employ-
er filled the position with a male." 108 F.3d at 1436. See
also Barbour v. Merrill, 48 F.3d 1270, 1276 (D.C. Cir. 1995).
The other type of promotion case involves employees de-
nied increases in pay or grade. In such cases, the traditional
McDonnell Douglas test does not fit. As we explained in
Bundy v. Jackson, 641 F.2d 934, 951 (D.C. Cir. 1981), a case
in which the plaintiff sought an increase in her grade based
on years of employment, "the literal McDonnell formula ...
designed for a claim of discriminatory refusal to hire ... does
not precisely apply to a claim, like Bundy's, of discriminatory
refusal to promote." Id. We therefore "adjust[ed] the
McDonnell formula" to ask whether a similarly situated
person outside of Bundy's protected class requested and
received the benefit she sought. Id.
In this case, the district court erred by applying the Bundy
test, designed expressly for denials of pay or grade increases,
to Cones' McDonnell Douglas-controlled non-selection claim,
where the only relevant question is whether Cones was
rejected for the position and a white person selected. It
matters not whether the person ultimately selected was pro-
moted to that position, hired from a pool of outside candi-
dates, or, as in this case, laterally transferred. Requiring
plaintiffs like Cones to establish that a similarly situated
person had been promoted into the position would create a
truly anomalous situation. An agency hiring an external
candidate would be liable under Title VII only to other
external candidates that it failed to hire. An internal candi-
date seeking a promotion to that position could never estab-
lish a prima facie case because the person selected would not
have been promoted to the position. Surely the McDonnell
Douglas prima facie showing was not intended to create this
absurd outcome.
Nothing in Johnson v. Brock, 810 F.2d 219 (D.C. Cir. 1987),
requires a different result. Although Johnson, a non-
selection case, did include a citation to Bundy, the only part
of the prima facie case the Court discussed was whether the
plaintiff had "applied" for the position, an element of both the
Bundy and McDonnell Douglas formulations. Id. at 225.
Johnson, moreover, predates our clear statements in Kolstad
and Barbour that plaintiffs in non-selection cases need show
only that they applied for the vacant position and that a
person not of their protected class was selected.
Having concluded that the district court erred in requiring
Cones to show that a similarly situated white person had been
promoted to the position, we consider whether Cones has
established the elements of a prima facie case. It is undis-
puted that Cones is African American and that a white person
was selected for the ASC Director position. HHS argues
that because it never opened the ASC Director position for
competition, Cones cannot establish either that he was quali-
fied for the position or that he applied for it. We disagree on
both counts.
First the qualification issue. Cones complains that HHS
refused to consider him for the position despite his substan-
tive qualifications. HHS does not challenge Cones' substan-
tive qualifications, and for good reason: Cones served in the
position for four months, received positive evaluations, and,
according to abundant record evidence, was familiar with the
job's duties. Indeed, at oral argument, HHS's counsel con-
ceded that the testimony of every witness "is that [Cones]
was substantively qualified had the position been advertised."
Instead, HHS maintains, Cones cannot establish a prima facie
case because he was not "technically" qualified insofar as he
was not a GS-15.
If accepted, HHS's theory of "qualification" would open a
potential loophole in Title VII. Agencies seeking to prevent
minority employees from advancing to higher level positions
could simply refuse to open those positions to competition and
instead laterally transfer non-minorities. Agency employees
would be unable to mount Title VII cases because none would
be "technically" qualified. Nothing in Title VII or McDon-
nell Douglas supports such a counterintuitive result.
This does not mean that the relative qualifications of Cones
and Dodd are irrelevant. To the contrary, their qualifications
and the role those qualifications played in HHS's decision to
select Dodd over Cones relate quite directly to the ultimate
question that a jury will face: whether HHS discriminated
against Cones when it selected Dodd for the position. For
purposes of the prima facie case, however, it is sufficient that
Cones has established that he was substantively qualified and
that HHS selected a white person. See St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 509-10 (1993) (if "reasonable
minds could differ as to whether a preponderance of the
evidence establishes the facts of a prima facie case, then a
question of fact does remain, which the trier of fact will be
called upon to answer"); Barbour, 48 F.3d at 1276 (issue of
qualification was question of fact for jury where "the jury
reasonably could have determined, from the evidence before
it ... that Barbour was qualified and that private sector
experience was not an absolute prerequisite"); Mitchell v.
Baldrige, 759 F.2d 80, 85 n.3 (D.C. Cir. 1985) ("the initial
responsibility of explaining the relative qualifications of the
plaintiff and the selectee" lies with the defendant, not with
the plaintiff as part of his prima facie case).
The Department's second argument--that Cones failed to
apply for the job--requires little discussion. According to
HHS, Cones cannot establish that he applied for the position
because ASMB never opened the position to competition.
Yet HHS concedes that Cones "applied" for the position in
precisely the same way as did Margaret Dodd: he expressed
his interest to Elizabeth James, the Deputy Assistant Secre-
tary who assisted Apfel with management of ASC. If Marga-
ret Dodd could get the position by expressing her interest to
Elizabeth James, Cones can certainly establish a prima facie
case by demonstrating that he did precisely the same thing.
See, e.g., EEOC v. Metal Service Co., 892 F.2d 341, 348 (3d
Cir. 1990) ("Courts have generally held that the failure to
formally apply for a job opening will not bar a Title VII
plaintiff from establishing a prima facie case of discriminatory
hiring, as long as the plaintiff made every reasonable attempt
to convey his interest in the job to the employer."); Holsey v.
Armour & Co., 743 F.2d 199, 208-09 (4th Cir. 1984); Grant v.
Bethlehem Steel Corp., 635 F.2d 1007, 1016 (2nd Cir. 1980).
III
Turning to the remaining steps of the McDonnell Douglas
analysis, we ask first whether HHS has rebutted the prima
facie case's inference of discrimination by producing evidence
of a legitimate, non-discriminatory reason for not selecting
Cones. See McDonnell Douglas, 411 U.S. at 802. We agree
with the district court that HHS met its burden. The agency
offered evidence that it selected Dodd to serve as ASC
Director because it was in the midst of downsizing, at least
partially in response to Executive Order 12,839.
The only remaining issue, then, is whether Cones produced
sufficient evidence from which a jury could infer that HHS's
downsizing rationale was actually pretext for discrimination.
See McDonnell Douglas, 411 U.S. at 804; Aka v. Washington
Hospital Center, 156 F.3d 1284, 1289 (D.C. Cir. 1998) (en
banc). We think that he has.
As an initial matter we must deal with the government's
argument that Cones cannot establish discriminatory motiva-
tion because, although Apfel made the final decision to trans-
fer Dodd, Cones alleged that it was James who harbored
discriminatory intent. The government relies on Hall v.
Giant Food, Inc., 175 F.3d 1074 (D.C. Cir. 1999), but then
ignores several key distinctions between that case and this
one. See also Holbrook v. Reno, Case No. 98-5462, 1999 WL
1065159 at *4-5 (D.C. Cir. Nov. 26, 1999). For one thing,
unlike in both Hall and Holbrook, where the plaintiffs had
offered "no evidence" to establish that the person with the
alleged discriminatory animus "was even involved in the
decisionmaking process," Hall, 175 F.3d at 1079, or "partici-
pated in" the adverse decision, Holbrook, 1999 WL 1065159 at
*4, the record here is replete with evidence of James' involve-
ment in the hiring decision. Asked about this at oral argu-
ment, HHS's counsel conceded, "[a]bsolutely, no question
about it" that James was "actively involved" in the decision to
transfer Dodd. More fundamentally, the plaintiff in Hall
offered no evidence of pretext--his entire case rested on a
single allegedly discriminatory comment by a person uncon-
nected to the challenged employment decision. In contrast,
Cones has offered sufficient evidence of pretext.
To begin with, as Cones points out, Apfel never asserted
that Dodd was selected for the position because of downsizing
or because she was a GS-15. Although Apfel testified that
laterally transferring Dodd "was certainly consistent with the
overall philosophy of hire from within, try to keep as few new
GS-14s or 15s in the organization" and that downsizing
"permeated how we did everything in the organization," he
recalled no conversation in which downsizing was discussed as
a reason to hire Dodd. Nor can we find any evidence in the
record that Apfel considered whether laterally transferring
Dodd would result in the elimination of her former position.
If HHS really selected Dodd because it was downsizing and
seeking to eliminate a GS-15 position, wouldn't Apfel have
wanted to know whether the position that Dodd was vacating
would be eliminated or whether he would have to hire another
GS-15 to fill that position?
To be sure, were this Cones' only evidence, it might well be
insufficient for a jury to conclude that HHS's downsizing
rationale was not just pretext, but pretext for discrimination.
Aka, 156 F.3d at 1291 ("in some instances ... the fact that
there are material questions as to whether the employer has
given the real explanation will not suffice to support an
inference of discrimination"). Cones, however, has provided
more. During the ten months immediately following the
issuance of the Executive Order and preceding Dodd's trans-
fer, the record shows that ASMB promoted three white
GS-14s to GS-15. From this evidence, a jury could conclude
that downsizing did not prevent HHS from promoting white
GS-14s and that the Department's assertion that downsizing
was the reason it did not consider Cones was a lie. As we
said in Aka: "If the jury can infer that the employer's
explanation is not only a mistaken one in terms of the facts,
but a lie, that should provide even stronger evidence of
discrimination.... The jury can conclude that an employer
who fabricates a false explanation has something to hide; that
'something' may well be discriminatory intent." Id. at 1293.
HHS argues that the three white GS-14s were not similar-
ly situated to Cones because they had been serving in acting
capacities in the positions to which they were promoted.
Perhaps so, but this explanation is hardly conclusive at this
stage of the litigation. Although the evidence could well
persuade a jury that no discrimination had occurred, a jury
could just as easily infer that the alleged differences between
Cones and the white GS-14s were irrelevant, or that they
were themselves the product of discrimination since the De-
partment had failed to permanently promote Cones to ASC
Director when he was serving in an acting capacity.
The text of the Executive Order may also provide a jury
with a basis for concluding that HHS's asserted concern with
downsizing was pretext for discrimination, particularly when
considered in combination with the promotion of the three
white GS-14s. Although the Executive Order clearly re-
quires HHS to reduce the number of upper-level positions, it
does not differentiate between eliminating GS-14 and GS-15
positions. See Executive Order 12,839, 58 Fed. Reg. 8515. It
provides only that "[a]t least 10 percent of the reductions
shall come from the Senior Executive Service, GS-15 and GS-
14 levels or equivalent." Id. HHS says it selected Dodd
because by laterally transferring her and eliminating her
former GS-15 position, the agency would be contributing to
the Executive Order's downsizing goal. Possibly, but the
agency could also have complied with the Executive Order by
promoting Cones and leaving his former GS-14 position va-
cant. HHS may well be able to convince a jury, as it did the
district court, that it reasonably interpreted the Executive
Order to require it to reduce the number of GS-15s. The
availability of a textually obvious alternative interpretation,
however, is evidence from which a jury could infer that HHS
deliberately misread the Executive Order to favor Dodd
because it preferred not to promote an African American.
HHS points to evidence of actual downsizing, including that
it promoted far greater numbers of employees prior to the
issuance of the Executive Order. But Cones does not dispute
that the agency was downsizing; the critical question is what
motivated the Department's decision not to promote Cones--
downsizing or discrimination. Because the record contains
evidence that downsizing had not prevented the Department
from promoting white GS-14s, a jury could conclude that
downsizing was pretext for discrimination.
In the "Statement of Facts" portion of its brief, HHS
mentions that in 1993 it selected three African Americans for
GS-15 positions, two by promotion and one through initial
hire. Yet HHS neither explains the significance of these
personnel actions to its theory of the case nor refers to them
anywhere else in its brief. Asked about this at oral argu-
ment, HHS counsel said, "I think this might be in er-
ror....because my recollection does not comport with that
being a 1993 date." As HHS's post-hearing submission indi-
cates, its brief in fact was mistaken. Only one African
American was promoted or hired as a GS-15 in 1993, and, as
Cones' counsel points out, that one African American was
promoted by the Undersecretary of HHS, not by ASMB.
This is not a case in which the plaintiff "has created only a
weak issue of material fact as to whether the employer's
explanation is untrue, and there is abundant independent
evidence in the record that no discrimination has occurred."
Aka, 156 F.3d at 1291. Not only has Cones provided evi-
dence that raises serious questions about the role of downsiz-
ing, but the Department has provided little if any record
evidence that no discrimination occurred. As in Aka, this
case ultimately turns on witness credibility. HHS's downsiz-
ing explanation presents a question of fact that is as "quintes-
sentially one for the finder of fact" as was the employer's
claim in Aka that the plaintiff was not "enthusiastic." Id. at
1298-99.
IV
This brings us finally to Cones' retaliation claim. He
alleges that HHS refused to allow him to compete for the
ASC Director position as retaliation for his having filed EEO
complaints. In evaluating this claim, we again apply a
burden-shifting mechanism: the plaintiff must first establish
a prima facie case; if he meets that burden, the employer
must articulate a legitimate non-retaliatory reason for its
action; finally, the plaintiff has the ultimate burden of estab-
lishing that the reason asserted by the employer is pretext
for retaliation. See Berger v. Iron Workers Reinforced Rod-
men Local 201, 843 F.2d 1395, 1423 (D.C. Cir. 1988). The
district court concluded that Cones had failed to establish a
prima facie case of retaliation and that, even if he had, he
failed to establish that HHS's non-retaliatory reason for
laterally transferring Dodd was pretext for retaliation. Again
we disagree.
We have described the elements of a prima facie case of
retaliation as follows: the plaintiff must establish that he
engaged in activity protected by Title VII, that the employer
took an adverse employment action against him, and that the
adverse action was causally related to the exercise of his
rights. See Paquin v. Federal Nat'l Mortgage Ass'n, 119
F.3d 23, 31 (D.C. Cir. 1997). HHS concedes that Cones
engaged in protected activity when he filed informal and
formal discrimination complaints, but it disputes Cones' asser-
tion that he has established the other two elements.
As to the first element--whether HHS took an adverse
employment action against Cones--it is undisputed that the
Department refused to allow Cones to compete for the ASC
Director position. HHS argues that only employment actions
of "some significance," such as hiring, firing, or promotion,
are actionable under Title VII. A decision not to competitive-
ly advertise a position, it asserts, is not actionable. But even
assuming that only hiring, firing, and promotion decisions can
give rise to Title VII liability, the crux of Cones' complaint is
that refusing to allow him to compete for the promotion was
tantamount to refusing to promote him. Furthermore,
HHS's narrow definition of adverse employment action con-
flicts with our precedent. As we just recently recognized, "no
particular type of personnel action [is] automatically excluded
from serving as the basis of a cause of action" under Title
VII, as long as the plaintiff is "aggrieved" by the action.
Brown, slip op. at 13-14; see also Passer v. American
Chemical Society, 935 F.2d 322, 331 (D.C. Cir. 1991) (action
for retaliation under parallel retaliation provision of the Age
Discrimination in Employment Act is not limited "only to acts
of retaliation that take the form of cognizable employment
actions such as discharge, transfer or demotion"). Unable to
dispute that its refusal to compete the position adversely
affected Cones, HHS cannot legitimately contend that it took
no adverse personnel action against him.
The Department next argues that Cones failed to demon-
strate a causal connection between the filing of his discrimina-
tion complaint and the refusal to consider him for the ASC
Director position. We agree with Cones, however, that given
the circumstances of this case the close temporal proximity of
his discrimination complaints to the refusal to consider him
for the ASC Director position is sufficient to establish a
causal connection. See Mitchell, 759 F.2d at 86 ("The causal
connection component of the prima facie case may be estab-
lished by showing that the employer had knowledge of the
employee's protected activity, and that the adverse personnel
action took place shortly after that activity."). Elizabeth
James, the Deputy Assistant Secretary who actively partici-
pated in the decision to fill the position non-competitively,
knew that Cones had filed a discrimination complaint. More-
over, at the same time HHS was deciding not to open the
ASC Director position for competitive promotion, an EEO
counselor was investigating Cones' informal discrimination
complaint, and Cones was filing formal complaints of both
discrimination and retaliation.
Having determined that Cones has established a prima
facie case of retaliation, we again consider HHS's evidence of
a legitimate reason for transferring Dodd into the position--
downsizing--and conclude that HHS has met its burden of
production. But for the reasons stated above, we also con-
clude that Cones has produced evidence from which a jury
could conclude that downsizing was pretext for retaliation.
Like Cones' discrimination claim, his retaliation claim raises
genuine issues of material fact that on this record may not be
resolved on summary judgment.
V
The judgment of the district court is reversed, and the case
is remanded for further proceedings consistent with this
opinion.
So ordered.