Holbrook, Dawnele v. Reno, Janet

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 7, 1999 Decided November 26, 1999

No. 98-5462

Dawnele Lyn Holbrook,
Appellant

v.

Janet Reno, Attorney General,
Appellee

Appeal from the United States District Court
for the District of Columbia
(No. 97cv01762)

Richard L. Swick argued the cause and filed the briefs for
appellant.

Anthony M. Alexis, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Wilma A.
Lewis, U.S. Attorney, and Mark E. Nagle and R. Craig
Lawrence, Assistant U.S. Attorneys.

 Before: Ginsburg, Rogers and Tatel, Circuit Judges.

Opinion for the Court filed by Circuit Judge Tatel.

Tatel, Circuit Judge: Concluding that appellant, a new
agent trainee at the FBI Academy, had not forthrightly
answered questions about an alleged improper relationship
with her physical trainer, the FBI found her unsuitable to
become a Special Agent, reassigned her to her former job as
an Intelligence Assistant, and suspended her for five days.
Appellant filed suit under Title VII of the Civil Rights Act of
1964, claiming that the FBI discriminated against her on the
basis of sex, created a hostile work environment by subjecting
her to an intrusive and abusive four-hour interview, and
retaliated against her when she filed an EEO complaint. At
the close of appellant's case, the district court, finding that
she had failed to produce evidence upon which the jury could
return a verdict in her favor on any of her claims, granted the
Government's motion for judgment as a matter of law. We
affirm.

I

After graduating from high school in 1987, Appellant Daw-
nele Lyn Holbrook went to work for the Federal Bureau of
Investigation. She received consistent "exceptional" job rat-
ings and several promotions. Having put herself through
college, Holbrook entered the FBI Academy at Quantico in
1995 to begin training to become a Special Agent. Her
experience at the Academy forms the basis of this lawsuit.
Because the district court granted judgment as a matter of
law, we describe the facts in the light most favorable to
Holbrook. See McGehee v. CIA, 697 F.2d 1095, 1098 n.3
(D.C. Cir. 1983).

Holbrook performed well in new agent training. Having
developed shin splints during physical exercises, she was
referred for treatment to Joe Palermo, an FBI Agent, in-
structor, and physical trainer. Holbrook and Palermo be-
came friends. They talked about his children and her career
goals. At one point, Holbrook went to Palermo's house to
pick up empty boxes to move some personal belongings.

Seeking a quiet place to study, Holbrook went to his house
again the next week. Because bad weather had made the
roads dangerous, she accepted Palermo's invitation to spend
the night and slept on a downstairs couch. Holbrook spent
the night at Palermo's home on three other occasions, each
time sleeping on the couch.

At a party celebrating the end of the training program,
Special Agent Kevin Crawford, the primary instructor for
Holbrook's class at the Academy, observed "eye contact"
between Holbrook and Palermo. Suspecting an improper
relationship between the two, Crawford reported his observa-
tions to Special Agent Lisa Massaroni, the staff counselor
responsible for supervising the new agents in Holbrook's
class. Massaroni did not report the information to her supe-
riors.

This was not the first time Crawford had taken an interest
in Holbrook. He had told Palermo that Holbrook was "fine"
and, on another occasion, that Holbrook could some day be
"the next Mrs. Palermo." Although Holbrook herself charac-
terized Crawford as a "good instructor," she cited several
instances in which he was "unprofessional." For example, he
declared his preference for "long-haired blonds" (Holbrook is
blond) and made crude sexual allusions during class.

Crawford's suspicions about a Palermo/Holbrook relation-
ship were heightened when, a week after the party, Palermo
told Crawford that Holbrook was sick and that the nurse had
told him that she should not participate in a training exercise
the next day. Questioning the nurse, Crawford learned that
although Holbrook had in fact been excused from the exer-
cise, the nurse had never told Palermo about her illness.
Crawford reported Palermo's false statement about the nurse,
as well as his own suspicions of a relationship, to his superior,
Acting Unit Chief Brent Mosher. Mosher had heard about
the possible relationship from another instructor. He report-
ed these suspicions to his superior, Assistant Director in
Charge of the Academy George Clow, and his deputy, Jeffrey
Higginbotham. Concerned that an instructor might be show-

ing favoritism to a trainee, Higginbotham directed Unit Chief
Marlene Hunter and Agent Massaroni to interview Holbrook.

During the interview with Massaroni and Hunter, Holbrook
denied any romantic relationship with Palermo. Asked if she
had been to his home on a date, she answered no. The
investigation was closed.

Over the following weekend, Holbrook became concerned
about having told the agents that she had not been to
Palermo's house for a date. Wanting to clarify that she had
been there, but not for a date, she went to see Massaroni.
Massaroni had prepared an electronic communication that
summarized the interview and stated that Holbrook denied
having been to Palermo's home. Holbrook corrected it to
read that she had been there "to pick up moving boxes."

When Clow and Higginbotham learned that Holbrook had
corrected the electronic communication, they obtained autho-
rization from the FBI's Office of Professional Responsibility
("OPR") to open a formal investigation. Two agents reinter-
viewed Holbrook. According to Holbrook, the agents ques-
tioned her about her "entire sex life" and repeatedly asked
her whether she had had sexual relations with Palermo or
with other FBI agents. Although Holbrook told them that it
was difficult for her to answer their questions because she
had been sexually abused as a child, they continued the
questioning. Holbrook testified: "It was just very humiliat-
ing and very degrading and embarrassing to have to try to
explain a feeling inside or a scare to--to two people that you
don't know, and also to people that you know are holding your
career in their hands." "[A]t one point," Holbrook testified,
"they became very evasive in their questioning, where it
didn't matter if I had slept with Mr. Palermo one time or 50
times, that they just basically needed to know how many
times I had slept with him." The agent who testified at trial
disputed Holbrook's characterization of the meeting, claiming
that Holbrook's evasiveness prolonged the session, which
lasted four hours.

Based on this interview, Clow concluded that Holbrook had
lied about her visits to Palermo's house. He also concluded

that she had violated an order not to speak with Palermo
during the pendency of the OPR investigation. Finding
Holbrook unsuitable to become an FBI Agent, Clow removed
her from the Academy and reassigned her to her previous job
as an Intelligence Assistant.

OPR subsequently completed its investigation, finding that
Holbrook had committed three offenses: exercising poor
judgment by maintaining a personal relationship with an
instructor; initially lying to her superiors; and disobeying
Clow's order not to talk to Palermo. The Unit Chief of
OPR's Adjudication Unit, Charles Dixon, approved the OPR
staff's recommendation of a three-day suspension. The Acad-
emy had recommended only a letter of censure. Noting that
Holbrook's misconduct involved "lying and blatant insubordi-
nation," Dixon's superiors increased the suspension from
three to five days.

During the pendency of the OPR investigation, Holbrook
filed an EEO complaint challenging her removal from the
Academy. Unable to resolve the complaint, Holbrook filed
suit in the United States District Court for the District of
Columbia pursuant to Title VII of the Civil Rights Act of
1964. See 42 U.S.C. ss 2000e et seq. She claimed sex
discrimination, sexual harassment, and retaliation for having
filed the EEO complaint. After the district court denied the
FBI's pre-trial motions, Holbrook tried her case to a jury
over three days. She presented thirteen witnesses.

Following the close of her evidence, the district court
granted the Government's motion for judgment as a matter of
law pursuant to Federal Rule of Civil Procedure 50(a), con-
cluding that Holbrook had failed to produce evidence from
which the jury could find in her favor on any of her claims.
With regard to her discrimination claim, the district court
identified several breaks in the chain of causation between
Crawford's allegedly discriminatory remarks and Clow's deci-
sion to remove Holbrook from the Academy. The district
court also found that Holbrook had not identified any "simi-
larly situated" employees and thus failed to make out a prima
facie case of indirect discrimination. Pointing to the absence

of any evidence relating to "pervasive conduct" or "intolerable
conditions," the district court found that no reasonable juror
could conclude that the four-hour interview amounted to
sexual harassment. Finally, observing that the evidence on
the retaliation claim was "thin to the point of abstraction," the
district court concluded that Holbrook had failed to produce
any evidence that the five-day suspension was influenced by
the filing of the EEO complaint. Holbrook appeals.

II

District courts may grant judgment as a matter of law only
if "there is no legally sufficient evidentiary basis for a reason-
able jury to find for" the nonmoving party. Fed. R. Civ. P.
50(a)(1). We review grants of judgment as a matter of law de
novo, affirming only if we find, based on our own independent
review of the evidence, that no reasonable jury could reach a
verdict in the plaintiff's favor. In making this determination,
we view "the evidence in the light most favorable to [the
plaintiff] and resolve all conflicts in [the plaintiff's] favor."
Scott v. District of Columbia, 101 F.3d 748, 752-53 (D.C. Cir.
1996). Applying this standard, we consider each of Hol-
brook's claims in turn.

Sex Discrimination

Title VII makes it an "unlawful employment practice for an
employer to fail or refuse to hire or to discharge any individu-
al, or otherwise to discriminate against any individual with
respect to his compensation, terms, conditions, or privileges
of employment, because of such individual's ... sex." 42
U.S.C. s 2000e-2(a)(1). Holbrook alleges that the FBI dis-
criminated against her on the basis of her sex in violation of
Title VII when it found her unsuitable to become a Special
Agent and reassigned her to her former non-Agent job as an
Intelligence Assistant. Holbrook may prove her case in one
of two ways: she may provide direct evidence of her employ-
er's discriminatory intent, or she may invoke the burden-
shifting framework of McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). Holbrook pursues both avenues.

 Crawford's behavior forms the basis for Holbrook's direct
discrimination claim. Contending that "Crawford created an
unprofessional and sexually-charged environment" by indicat-
ing his preference for long-haired blonds, making various
sexual comments, and telling another instructor that Hol-
brook was "fine," Holbrook argues that "but for Mr. Craw-
ford's gender-based interest in [her] personal life, she would
now be serving as an FBI agent." She argues that because
Crawford was the "driving force" in the process that led to
her termination, his improper comments amount to evidence
of direct discrimination.

Holbrook's direct discrimination case suffers from two fatal
flaws. First, not only did she introduce no evidence from
which the jury could have concluded that Crawford harbored
any discriminatory intent, but her counsel described Craw-
ford's behavior as merely "sort of immature." Holbrook
herself testified only that Crawford was "a little unprofession-
al."

Second, even if the jury could have concluded from Craw-
ford's "immature" behavior that he intended to discriminate
against Holbrook, Crawford's behavior cannot form the basis
of a direct discrimination claim because the record contains
no evidence that he participated in the Bureau's decision that
Holbrook was unsuitable to become an FBI Agent. As the
district court pointed out, there are at least two breaks in the
chain of causation between Crawford's actions and Holbrook's
removal from the Academy. Contrary to Holbrook's conten-
tion that Crawford was the "driving force" behind the investi-
gation into an improper relationship between her and Paler-
mo, Mosher, the Acting Unit Chief, testified that another
instructor had reported similar concerns. Even more impor-
tant, it was not the investigation of Palermo--the investiga-
tion that Crawford may have initiated--that ultimately led to
Holbrook's removal from the Academy. Both Clow and
Higginbotham testified that they considered the Palermo
matter closed after Holbrook denied going to his house. Only

after Massaroni reported that Holbrook may have lied did
they reopen the investigation.

This case is controlled by Hall v. Giant Food, 175 F.3d
1074 (D.C. Cir. 1999). Hall held that a supervisor's discrimi-
natory remarks could not be considered evidence of discrimi-
nation because the decision to dismiss the employee was
made not by the supervisor, but by the company's Director of
Transportation. See id. at 1079-80. Although the supervisor
had reported the employee's misconduct to the Director, the
Director "made an independent assessment of Hall's con-
duct." Id. at 1080. The same happened here. Clow "made
an independent assessment" of Holbrook's conduct and deter-
mined that she was unsuitable to become an FBI Agent.
Nothing in the record indicates either that Crawford had
input into Clow's decision or that Crawford discussed Hol-
brook's suitability with Clow or Higginbotham. Holbrook's
counsel never questioned Crawford on this critical point.

Holbrook's indirect discrimination claim fares no better.
To establish a prima facie case under the McDonnell Douglas
framework, Holbrook must demonstrate (1) that she is a
member of a protected class; (2) that she was similarly
situated to an employee who was not a member of the
protected class; and (3) that she and the similarly situated
person were treated disparately. See McDonnell Douglas,
411 U.S. at 802; Ramsey v. American Air Filter Co., Inc.,
772 F.2d 1303, 1307 (7th Cir. 1985). Although the McDonnell
Douglas framework "drops from the case" once the defendant
responds to the plaintiff's proof and offers rebuttal evidence,
it remains relevant here because the district court granted
judgment as a matter of law before the Government present-
ed its case. United States Postal Service Bd. of Govs. v.
Aikens, 460 U.S. 711, 715 (1983).

To prove that she is similarly situated to a male employee,
a female plaintiff must demonstrate that she and the allegedly
similarly situated male employee were charged with offenses
of "comparable seriousness." See Lynn v. Deaconness Med.
Ctr., 160 F.3d 484, 488 (8th Cir. 1998) (internal quotation

marks omitted). A plaintiff must also demonstrate that "all
of the relevant aspects of her employment situation were
'nearly identical' to those of the male" employee. Neuren v.
Adduci, Mastriani, Meeks & Schill, 43 F.3d 1507, 1514 (D.C.
Cir. 1995) (quoting Pierce v. Commonwealth Life Ins. Co., 40
F.3d 796, 802 (6th Cir. 1994)). Neuren concluded that a
female associate at a law firm who was terminated because of
her failure to get along with others was not similarly situated
to a less senior male associate who had trouble with legal
writing. 43 F.3d at 1514. Barbour v. Browner, 181 F.3d
1342 (D.C. Cir. 1999) concluded that two EPA employees with
similar job descriptions, one a GS-12 and the other a GS-13,
were not similarly situated. In making this determination,
Barbour relied on the fact that the GS-13 performed several
duties that the GS-12 (the plaintiff) did not. Id. at 1345.

With this standard in mind, we turn to Holbrook's evidence.
She claims to be similarly situated to three employees: two
new agent trainees allowed to become FBI Agents despite
their misconduct and Palermo himself. The district court
concluded that none was similarly situated to Holbrook, and
we agree.

Holbrook's counsel elicited from Clow only sketchy details
about the first of the agent trainees. Calling the trainee a
"class clown," Clow expressed concerns about his suitability
to become an FBI Agent, explaining that the trainee "said
inappropriate things at inappropriate times" and "was an
instigator of class misbehavior." Despite this immature be-
havior, the trainee was permitted to graduate. From what
little we know about the trainee, we share the district court's
view that his situation was not "nearly identical" to Hol-
brook's. Holbrook's offenses--lack of forthrightness and dis-
obedience--and immature behavior are hardly of "comparable
seriousness."

The second trainee admitted to drinking before driving.
Although the FBI reprimanded the agent for poor judgment,
it allowed him to graduate. As the district court concluded,
this trainee is not similarly situated to Holbrook because, like
the first trainee, he was accused of "misconduct of a type that

does not involve honesty and forthrightness, which is what
Ms. Holbrook's case was about."

Palermo's offense, unlike the offenses of the two agent
trainees, is comparable to Holbrook's. Holbrook was disci-
plined for lying and disobedience; Palermo was disciplined
for lying and engaging in an improper relationship with a
subordinate. At this point, however, the similarity between
Palermo and Holbrook ends. Palermo was a fifteen-year FBI
veteran with supervisory responsibilities. Holbrook was a
probationary trainee. Neuren's conclusion that the two law
firm associates were not similarly situated rested in part on
the difference in their seniorities. Because "the partners
weren't as pressed to make a decision regarding [the less
senior male employee's] partnership prospects as they were
with [the plaintiff's]," the plaintiff could not create an infer-
ence of discrimination by reference to the fact that she was
fired but he was not. 43 F.3d at 1514. If the difference in
seniority between the Neuren plaintiff and another associate
undermined her claim that they were similarly situated, we
cannot see how Holbrook, a probationary trainee, could possi-
bly be similarly situated to a fifteen-year veteran with super-
visory responsibilities. Indeed, in McKenna v. Weinberger,
729 F.2d 783 (D.C. Cir. 1984), we expressly held that a
probationary employee was not similarly situated to a perma-
nent employee, noting that "agency regulations mandated
that probationary employees with serious performance prob-
lems were to be terminated, even if those problems would not
have been good cause for terminating a permanent employ-
ee." Id. at 789-90.

Holbrook and Palermo are not similarly situated for anoth-
er, related reason. As the FBI points out, their different
seniorities made it impossible for the FBI to discipline them
similarly. Because Palermo had been an Agent for fifteen
years, finding him unsuitable to become an Agent (Holbrook's
sanction) was simply not an option. Because Holbrook was a
probationary trainee, reassigning her to a different Agent
position (Palermo's sanction) was likewise not an option. And
with respect to the sanction that the FBI could impose on

both--suspension--Palermo's was more severe (his two
weeks versus her five days).

Sexual Harassment

Two types of sexual harassment are actionable under Title
VII: quid pro quo and hostile work environment. See Meri-
tor Savings Bank v. Vinson, 477 U.S. 57, 65-66 (1986). This
case involves the latter. Holbrook argues that the intrusive
nature of the questioning during the four-hour interview with
the two agents, together with the abusive manner in which
she says it was conducted, created a hostile work environ-
ment. To violate Title VII, Meritor requires that workplace
harassment be "sufficiently severe or pervasive to 'alter the
conditions of [the victim's] employment' " and " 'unreasonably
interfer[e] with an individual's work performance.' " Id. at
67, 65 (internal citations omitted).

In evaluating the sufficiency of the harassment evidence, it
is important to keep in mind that Holbrook does not claim
that Crawford's "unprofessional" and "immature" behavior
contributed to the allegedly hostile work environment. She
focuses only on the four-hour interview, testifying that she
was questioned about "basically every sexual relationship" in
which she had ever been involved.

Fully crediting Holbrook's version of the interview, the
jury could have concluded that it covered intrusive subjects of
an extremely personal nature not at all relevant to the
investigation. The jury could also have found that these
questions were asked in an abusive and degrading manner.
What the jury could not have concluded--because neither
Holbrook's testimony nor any other evidence at trial ad-
dressed the issue--was that the interview either " 'alter[ed]
the conditions' " of Holbrook's employment or " 'unreasonably
interfer[ed] with [her] work performance,' " as Meritor re-
quires. 477 U.S. at 67, 65 (internal citations omitted). Did
the nature of the questioning change the nature of Holbrook's
job? Did the questioning change how Holbrook felt about
her job? Did it interfere with her job performance or make it
more difficult for her to do her job? Did it change how

people treated her? The jury would have had no way of
knowing answers to questions that Holbrook's attorney never
asked.

All the record reveals about Holbrook's post-interview
work environment is that she returned to her non-Agent job,
where she continued to perform exceptionally well. To be
sure, Holbrook did testify that it was "difficult" to return to
her former job "with everybody knowing that [she] didn't
accomplish what [she] set out to do." What other people
thought about whether she had accomplished her goals, how-
ever, has nothing to do with the effects of the interview, the
basis of her sexual harassment claim. We thus agree with
the district court that no reasonable jury could have found
that the interview created a hostile work environment.

Retaliation

We turn finally to Holbrook's claim that the FBI retaliated
against her for filing the EEO complaint. Because she did
not file the complaint until after the FBI determined that she
was unsuitable to become a Special Agent, her retaliation
claim focuses only on the five-day suspension. And because
the OPR investigation began before she filed her EEO com-
plaint, her retaliation cause of action boils down to her claim
that "her punishment was progressively increased" from a
letter of censure to a five-day suspension.

Claims of retaliation are governed by the McDonnell Doug-
las burden-shifting framework. See Carney v. The American
University, 151 F.3d 1090, 1094 (D.C. Cir. 1998). To estab-
lish a prima facie case, a plaintiff must show that (1) she
engaged in statutorily protected activity; (2) her employer
took an adverse personnel action against her; and (3) a causal
connection between the two exists. Id. at 1095. If a prima
facie case is established, the burden of production shifts to
the employer to articulate a legitimate, nondiscriminatory
reason for the adverse action. The employee must then
prove by a preponderance of the evidence that the asserted
reason is a pretext for retaliation. See McKenna, 729 F.2d at
790.

 Holbrook has easily satisfied the first two elements of a
prima facie case. She engaged in statutorily protected activi-
ty by filing an EEO complaint. She was subject to adverse
personnel action when she was suspended for five days.

To satisfy the third element of a prima facie case--a causal
connection between the statutorily protected activity and the
adverse personnel action--Holbrook must show that the FBI
"had knowledge of [her] protected activity, and that the
adverse personnel action took place shortly after that activi-
ty." Mitchell v. Baldrige, 759 F.2d 80, 86 (D.C. Cir. 1985).
Charles Dixon, the head of the OPR Adjudication Unit who
recommended the three-day suspension, testified that he
knew about Holbrook's EEO complaint. But the record does
not establish that Dixon's superiors knew about the complaint
when they increased the suspension from three to five days.
Holbrook's counsel never called them to testify.

We need not decide whether Dixon's knowledge alone could
be sufficient to make out a prima facie case, for even if
Holbrook had established a prima facie case, the FBI has
satisfied its burden of articulating a legitimate, nondiscrimi-
natory reason for Holbrook's five-day suspension, and Hol-
brook has offered no evidence of pretext. As to the FBI's
burden, Dixon explained that Holbrook's conduct--lying, dis-
obedience, and poor judgment--merited a sanction more seri-
ous than a letter of censure. He also characterized the three-
day suspension that he recommended as "relatively minor."
While the record contains no direct testimony explaining why
Dixon's superiors increased the suspension to five days, one
of the superiors wrote in a note that "lying and blatant
insubordination[ ] [d]eserve more than three [days] unless
there is strong precedent in opposition." The OPR report
reviews Holbrook's misconduct in detail, canvasses prior
cases involving discipline of new agent trainees, and concludes
that a five-day suspension is appropriate. Holbrook, more-
over, points to no evidence from which the jury could have
inferred that these plainly nondiscriminatory explanations
were a pretext for punishing her for filing the EEO com-
plaint. As the district court found, "There was absolutely no
credible suggestion on this record that anybody was influ-

enced or that [the decision to suspend Holbrook for five days]
was affected in any way by the pendency of the plaintiff's
EEO complaint." The only relevant evidence is to the con-
trary: asked by Government counsel if he had been influ-
enced by the filing of the EEO complaint, Dixon said no.

Because Holbrook offered no evidence on which the jury
could have found in her favor on any of her claims, we affirm.

So ordered.