United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 13, 2005 Decided May 17, 2005
No. 03-5356
DIANE N. GEORGE,
APPELLANT
v.
MICHAEL O. LEAVITT, ADMINISTRATOR, EPA,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 01cv00654)
Suzanne M. Tsintolas argued the cause and filed the brief
for appellant.
Heather Graham-Oliver, Assistant U.S. Attorney, argued
the cause for appellee. With her on the brief were Kenneth L.
Wainstein, U.S. Attorney, and Michael J. Ryan, Assistant U.S.
Attorney. R. Craig Lawrence, Assistant U.S. Attorney, entered
an appearance.
Before: EDWARD S, HENDERSON, and RANDOLPH, Circuit
Judges.
2
Opinion for the Court filed by Circuit Judge EDWARDS.
EDWARDS, Circuit Judge: Following her discharge from the
Environmental Protection Agency (“EPA”), appellant Diane N.
George brought suit in the District Court, claiming violations of
Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C.
§ 2000e et seq. (2000). Specifically, George claimed that she
had been subject to a hostile work environment, that her
discharge was the result of discrimination on the basis of race,
sex, and national origin, and that she was retaliated against for
engaging in activities that were protected under Title VII. The
District Court granted summary judgment in favor of EPA on all
counts. See George v. Horinko, Civ. A. No. 01-00654 (D.D.C.
Oct. 16, 2003), reprinted in Joint Appendix (“J.A.”) 570.
We affirm the judgment against George on her retaliation
and hostile work environment claims, but we reverse the
judgment in favor of EPA on the discrimination claims. On the
record at hand, George has proffered evidence by which a
reasonable jury could conclude that EPA’s stated reasons for her
discharge are a pretext for discrimination. Accordingly, she has
created a genuine dispute over the validity of the reasons given
for her discharge, precluding summary judgment. The case will
therefore be remanded to the District Court for further
proceedings consistent with this opinion.
I. BACKGROUND
Diane George is a black woman originally from Trinidad
and Tobago. An engineer by training, she was hired by EPA on
September 14, 1998, subject to a one-year probationary period,
to work as an environmental specialist in EPA’s Office of the
Asbestos and Small Business Ombudsman (“OASBO”). George
was fired on March 26, 1999.
During the six months that George worked at EPA, Karen
Brown, the Asbestos and Small Business Ombudsman, was
George’s team leader and had direct day-to-day supervisory
3
responsibility over George. Brown, however, was not officially
classified as a manager; rather, Tom Kelly, the director of EPA’s
Office of Regulatory Management and Information, was the
manager of record for both George and Brown. Although
Brown interviewed George and recommended that she be hired,
it was Kelly who officially hired and fired George.
In addition to George and Brown (a black woman), the
OASBO during George’s tenure consisted of a deputy
ombudsman (a white man), four clerical or administrative
employees (all black women), a computer specialist (a black
man), and four professional engineers (all white men). With the
exception of George and an engineer who originally was from
Great Britain, all of the employees were from the United States.
George was the only probationary employee in the unit, but
seven of the other employees, including all four engineers, were
employed not as federal civil servants but rather on a contract
basis under EPA’s Senior Environmental Employment Program.
According to George, she and her co-workers had several
confrontations in December 1998 and January 1999 when her
co-workers made insulting and demeaning statements to her. On
different occasions, she was told by three separate employees to
“go back to Trinidad” or to “go back to where [she] came from.”
On these and other occasions, her co-workers shouted at her,
told her that she should never have been hired, and told her to
“shut up.” George reported each of these incidents to Brown,
but Brown blamed George for causing the incidents and did not
take any action.
George also maintains that she was assigned to various
clerical duties that the white male engineers were never required
to perform. In December 1998 and again in January 1999,
George met with staff in EPA’s Office of Human Resources to
complain about her treatment and to seek advice. George was
told to consider a transfer to another office or take her
4
complaints to the director of the human resources office, but no
further investigation or action appears to have been taken.
On January 27, 1999, Brown and Kelly conducted a review
of George’s job performance. During the course of the
evaluation, neither Brown nor Kelly raised any concerns about
George’s work or conduct. The supervisors’ written evaluation
gave George a “Successful” rating and observed that her work
“shows considerable thought, insight and creativeness” and
“require[s] no more than minor revisions”; that she “[w]orks
effectively with office staff”; that she “routinely” meets her
deadlines; and that she “[k]eeps pace with most new emerging
external EPA issues and activities affecting office roles and
responsibilities.” Brown and Kelly maintain, however, that
Brown advised Kelly before the performance review that Brown
wanted to overlook any problems that George may have had in
order to send her an encouraging message.
According to Brown, in the weeks following George’s
evaluation, George had a number of confrontations with her co-
workers, including one incident when George was rude to an
employee in the EPA mailroom, causing the employee’s
supervisor to lodge a complaint with OASBO, and another
incident when George appeared rude after Brown asked her to
cover a meeting. In mid-February, following these incidents,
Brown met with Carolyn Johnson, the director of the Office of
Human Resources, to seek advice on terminating “a
probationary employee.”
At around the same time, George returned to the Office of
Human Resources to complain about Brown and what George
perceived to be discriminatory treatment. George eventually
met with Johnson, who advised George to take her complaints
to EPA’s Office of Civil Rights. George was provided
information on her rights, including procedures for filing
complaints of discrimination.
5
A few days later, Brown held a staff meeting with the
OASBO clerical staff. Brown told the employees at the meeting
that George was “causing problems” and instructed them to
“keep [their] distance” from her. Brown also told the staff that
she wanted a witness to be present whenever she and George
met. And, on at least one occasion, an employee was asked to
witness a conversation between Brown and George to ensure
that “there couldn’t be any call of harassment.”
On February 23, Brown met with George to discuss some
complaints regarding George’s transcription of phone messages
from an office answering machine (“the Hotline”). George
denied that she had made any mistakes. Brown thought that
George was insubordinate during the meeting, challenging
Brown’s authority. George, on the other hand, maintains that,
without provocation, Brown “suddenly lost control” during the
meeting.
The next day, Brown advised George that her employment
was “not working out” and that she intended to raise the matter
with Kelly. Brown met with Kelly that same day and
recommended that George be fired. Kelly took Brown’s
recommendation under advisement, but made it clear that he
would not simply accept Brown’s account of the facts, but “was
going to find out [for himself] what was going on.”
On February 26, George went to the Office of Civil Rights
to discuss the filing of a discrimination complaint against Brown
and the agency. She also scheduled a private meeting with
Kelly for March 1. At that meeting, George voiced her
complaints to Kelly, expressing concern that she was a victim of
discrimination and harassment. At the conclusion of the
meeting, Kelly told George that he took her complaints seriously
and would look into the situation. Kelly subsequently spoke
with Brown about George’s charges. Brown told Kelly that, in
her view, George was to blame for provoking her co-workers.
6
On March 2, according to George, Brown came into
George’s office and, on her way out, violently and angrily
kicked a box that she stumbled over. Noticeably shaken by this
incident, George met with Kelly to inform him of the incident.
George told Kelly that she was “fed up with the harassment” and
was going to file a complaint with the Office of Civil Rights.
After his meeting with George, Kelly spoke with Brown
about George’s allegations. Brown denied that she had violently
kicked a box, maintaining that she had merely stumbled over it
and moved it out of the way with her foot. Brown told Kelly
that another OASBO employee, James Malcolm, had witnessed
the event.
Kelly claims that he then spoke with Malcolm. According
to Kelly, Malcolm corroborated Brown’s account of the
incident, and also volunteered various problems he had in
working with George. Malcolm does not remember speaking to
Kelly about George, but states that, if he did, he would have
corroborated Brown’s account about the box-kicking incident.
He maintains, however, that he “[a]bsolutely” never complained
about George to Kelly. For her part, George maintains that
Malcolm witnessed an entirely different incident when Brown
stumbled over a box, not the incident in question when Brown
violently kicked a box.
Kelly states that, after his conversations with Brown and
Malcolm, he concluded that George was lying about the box-
kicking incident. At this point, still on March 2, Kelly
concluded that George was unreliable and, his earlier decision
to conduct a full investigation of the facts notwithstanding, he
decided to accept Brown’s recommendation and fire George.
Kelly claims that he continued his investigation on March
3 when he spoke with another OASBO employee, Arnold
Medbery. Kelly knew from Brown that there had been a “great
deal of dissatisfaction” with George’s transcription of Hotline
7
messages. George had told Kelly that she had received
inadequate training on Hotline work and on other tasks that she
was required to perform. Kelly found these claims “incredible”
and wanted to speak with Medbery about the matter. According
to Kelly, Medbery said that George was lying if she had claimed
that she had not received training on transcribing Hotline
messages. Medbery, for his part, firmly denies that such a
conversation with Kelly ever took place. In any event, there is
nothing in the record to suggest how any conversation Kelly had
with Medbery on March 3 might have factored into Kelly’s
decision to fire George, which Kelly claims he made on
March 2.
On March 3, George filed a claim of discrimination with the
Office of Civil Rights. The next day, Kelly notified George by
memorandum of her discharge, citing five reasons: (1) inability
to organize work, analyze and present information, and
demonstrate satisfactory initiative; (2) poor judgment leading to
unacceptable relationships with her peers; (3) inability to accept
coaching and supervision; (4) failure to contribute substantively
in group settings; and (5) making material misrepresentations to
her supervisor. George was immediately placed on paid
administrative leave, where she remained until her separation
from employment on March 26, 1999.
George unsuccessfully challenged her termination in a
whistleblower retaliation action before the Merit Systems
Protection Board before filing claims with the Equal
Employment Opportunity Commission for discrimination and
retaliation. After those claims were rejected, George filed the
instant Title VII action, claiming unlawful discrimination based
on race, sex, and national origin; a hostile work environment;
and retaliation. On October 16, 2003, the District Court granted
summary judgment in favor of EPA on all counts and this appeal
followed.
8
II. ANALYSIS
A. Standard of Review
We review de novo a district court’s decision to grant
summary judgment. Kaempe v. Myers, 367 F.3d 958, 965 (D.C.
Cir. 2004). Summary judgment is proper only if “there is no
genuine issue as to any material fact and . . . the moving party is
entitled to a judgment as a matter of law.” FED. R. CIV. P. 56(c);
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). A
dispute over a material fact is “genuine” if “the evidence is such
that a reasonable jury could return a verdict for the nonmoving
party.” Id. at 248.
The Supreme Court has made it clear that “at the summary
judgment stage the judge’s function is not himself to weigh the
evidence and determine the truth of the matter but to determine
whether there is a genuine issue for trial.” Id. at 249.
“Credibility determinations, the weighing of the evidence, and
the drawing of legitimate inferences from the facts are jury
functions, not those of a judge” ruling on a motion for summary
judgment. Id. at 255. Thus, when reviewing a motion for
summary judgment, a court must view all of the evidence in the
light most favorable to the nonmoving party. Adickes v. S.H.
Kress & Co., 398 U.S. 144, 158-59 (1970); Kaempe, 367 F.3d
at 965.
B. The Discrimination Claims
Title VII makes it “an unlawful employment practice for an
employer . . . to discharge any individual, or otherwise to
discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment,
because of such individual’s race, color, religion, sex, or
national origin.” 42 U.S.C. § 2000e-2(a)(1). Although this
provision does not apply to federal agencies, see id. § 2000e(b)
(defining “employer”), Title VII contains a separate provision
that does. See id. § 2000e-16(a) (“All personnel actions
9
affecting employees . . . in executive agencies . . . shall be made
free from any discrimination based on race, color, religion, sex,
or national origin.”). Despite the differences in language
between the two provisions, we have held that “Title VII places
the same restrictions on federal and District of Columbia
agencies as it does on private employers, and so we may
construe the latter provision in terms of the former.” Singletary
v. Dist. of Columbia, 351 F.3d 519, 523-24 (D.C. Cir. 2003)
(internal quotation marks omitted).
George claims that her discharge was the result of
discrimination based on her race, sex, and national origin, in
violation of Title VII’s mandate. Such disparate-treatment
claims are analyzed under the familiar burden-shifting
framework set forth in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). That case “set forth the basic allocation of
burdens and order of presentation of proof” in such cases, as
follows:
First, the plaintiff has the burden of proving by the
preponderance of the evidence a prima facie case of
discrimination. Second, if the plaintiff succeeds in proving
the prima facie case, the burden shifts to the defendant to
articulate some legitimate, nondiscriminatory reason for the
employee’s rejection. Third, should the defendant carry
this burden, the plaintiff must then have an opportunity to
prove by a preponderance of the evidence that the
legitimate reasons offered by the defendant were not its true
reasons, but were a pretext for discrimination.
Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53
(1981) (citation and internal quotation marks omitted).
The Court has emphasized, however, that the “central focus
of the inquiry” in such cases “is always whether the employer is
treating ‘some people less favorably than others because of their
race, color, religion, sex, or national origin.’” Furnco Constr.
10
Corp. v. Waters, 438 U.S. 567, 577 (1978) (quoting Int’l Bhd. of
Teamsters v. United States, 431 U.S. 324, 335 n.15 (1977)); see
also Burdine, 450 U.S. at 253 (noting that the “ultimate burden,”
which “remains at all times with the plaintiff,” is to persuade the
trier of fact “that the defendant intentionally discriminated
against the plaintiff”). The McDonnell Douglas framework
“was ‘never intended to be rigid, mechanized, or ritualistic.
Rather, it is merely a sensible, orderly way to evaluate the
evidence in light of common experience as it bears on the
critical question of discrimination.’” United States Postal Serv.
Bd. of Governors v. Aikens, 460 U.S. 711, 715 (1983) (quoting
Furnco, 438 U.S. at 577). Accordingly, the Court has instructed
that
[w]here the defendant has done everything that would be
required of him if the plaintiff had properly made out a
prima facie case, whether the plaintiff really did so is no
longer relevant. The district court has before it all the
evidence it needs to decide whether “the defendant
intentionally discriminated against the plaintiff.”
Id. (quoting Burdine, 450 U.S. at 253).
In this case, as part of the parties’ cross-motions for
summary judgment, the Government articulated legitimate
reasons for George’s discharge and proffered evidence in
support of those reasons. Accordingly, heeding Aikens’
instruction, we need not address the Government’s contentions
that George failed to make out a prima facie case. Instead, we
proceed to “the ultimate question of discrimination vel non.” Id.
at 714; see also Teneyck v. Omni Shoreham Hotel, 365 F.3d
1139, 1154 (D.C. Cir. 2004) (“[O]nce the defendant has
responded with rebuttal evidence, the factfinder normally
proceeds to the ultimate issue on the merits to determine
whether the employer intentionally discriminated against the
plaintiff.”). Of course, consideration of this question requires us
to evaluate all of the evidence before us, including the same
11
evidence that a plaintiff would use to establish her prima facie
case. See Teneyck, 365 F.3d at 1151 (“The ultimate question . . .
is whether intentional discrimination may be inferred from all
the evidence before the trier of fact. This includes ‘(1) the
plaintiff’s prima facie case; (2) any evidence the plaintiff
presents to attack the employer’s proffered explanations for its
actions; and (3) any further evidence of discrimination that may
be available to the plaintiff (such as independent evidence of
discriminatory statements or attitudes on the part of the
employer).’” (quoting Dunaway v. Int’l Bhd. of Teamsters, 310
F.3d 758, 763 (D.C. Cir. 2002) (internal quotation marks
omitted))).
We note in passing that, in assessing whether George made
out a prima facie case, the District Court committed two legal
errors. First, the District Court held that, “[t]o establish a prima
facie case of disparate treatment discrimination, the plaintiff
must show [inter alia] that she was treated differently than
similarly situated employees.” George, slip op. at 7, J.A. 576.
This is not a correct statement of the law. We have made clear
that a plaintiff makes out a prima facie case of
disparate-treatment discrimination “by establishing that: ‘(1)
she is a member of a protected class; (2) she suffered an adverse
employment action; and (3) the unfavorable action gives rise to
an inference of discrimination.’” Stella v. Mineta, 284 F.3d 135,
145 (D.C. Cir. 2002) (quoting Brown v. Brody, 199 F.3d 446,
452 (D.C. Cir. 1999)). One method by which a plaintiff can
satisfy the third prong of this test is by demonstrating that she
was treated differently from similarly situated employees who
are not part of the protected class. See Holbrook v. Reno, 196
F.3d 255, 261 (D.C. Cir. 1999). But this is not the only way.
In Stella and Teneyck, we made clear that another way to
satisfy Stella’s third prong is to show that the adverse
employment action “is not attributable to ‘the two most common
legitimate reasons on which an employer might rely to reject a
12
job applicant: an absolute or relative lack of qualifications or
the absence of a vacancy in the job sought.’” Stella, 284 F.3d at
145 (quoting Teamsters, 431 U.S. at 358 n.44); see also
Teneyck, 365 F.3d at 1150-51. “Elimination of these reasons . . .
is sufficient, absent other explanation, to create an inference that
the decision was a discriminatory one.” Teamsters, 431 U.S. at
358 n.44. In the context of a discharge claim, this method of
establishing the prima facie case would require a showing that
the discharge was not attributable to the two analogous common
legitimate reasons for discharge: performance below the
employer’s legitimate expectations or the elimination of the
plaintiff’s position altogether. See 1 LEX K. LARSON ,
EMPLOYMENT DISCRIMINATION § 8.08[4] (2d ed. 2005).
The District Court also erred in suggesting that, “[t]o
establish a prima facie case of discrimination in a discharge
decision, the plaintiff must show [inter alia] replacement by a
person of equal or lesser ability who is not a member of a
protected class.” George, slip op. at 7, J.A. 576. This too is an
incorrect statement of the law. In Stella, we made it clear that
“a plaintiff in a discrimination case need not demonstrate that
she was replaced by a person outside her protected class in order
to carry her burden of establishing a prima facie case under
McDonnell Douglas,” noting that such a requirement would go
beyond what is necessary to create an inference of
discrimination. Stella, 284 F.3d at 146; see also Lathram v.
Snow, 336 F.3d 1085, 1088 (D.C. Cir. 2003) (confirming, in
light of Stella, the prima facie test for discriminatory
non-promotion).
Applying the correct legal standards to the record at hand,
it appears that George made out a prima facie case. She is a
member of a protected class, she suffered an adverse
employment action, and her discharge gave rise to an inference
of discrimination, because, as we explain below, George created
a genuine issue as to whether she was performing at a
13
satisfactory level and her discharge was not precipitated by the
elimination of her job. We make this point on the prima facie
case not to “evade[] the ultimate question of discrimination vel
non,” Aikens, 460 U.S. at 714, but rather because George’s
prima facie case is part of the evidence we must consider in
addressing that question.
In assessing the issue of discrimination, the question here is
whether, in light of the record now before us, a reasonable jury
could find that EPA officials acted pursuant to unlawful motives
when they fired George. As noted above, at the summary
judgment stage, a judge may not make credibility
determinations, weigh the evidence, or draw inferences from the
facts – these are jury functions, not those of a judge ruling on a
motion for summary judgment. Therefore, in determining
whether the District Court erred in granting judgment in favor
of EPA, we must view all of the evidence in the light most
favorable to George. And in assessing George’s discrimination
claims to determine whether a jury could reasonably rule in her
favor, we remain mindful that a plaintiff can show
discrimination “either directly by persuading the [factfinder] that
a discriminatory reason more likely motivated the employer or
indirectly by showing that the employer’s proffered explanation
is unworthy of credence.” Burdine, 450 U.S. at 256; accord
Aikens, 460 U.S. at 716.
Usually, proffering “evidence from which a jury could find
that [the employer’s] stated reasons . . . were pretextual . . . will
be enough to get a plaintiff’s claim to a jury.” Carpenter v. Fed.
Nat’l Mortgage Ass’n, 165 F.3d 69, 72 (D.C. Cir. 1999) (citing
Aka v. Wash. Hosp. Ctr., 156 F.3d 1284 (D.C. Cir. 1998) (en
banc)). We think that George has proffered ample evidence by
which a reasonable jury could conclude that EPA’s stated
reasons for her termination are “unworthy of credence.” George
vigorously disputes the validity of the reasons cited by EPA,
creating a genuine dispute over these material facts. Although
14
a jury may ultimately decide to credit the version of the events
described by Brown and Kelly over that offered by George, this
is not a basis upon which a court may rest in granting a motion
for summary judgment.
As already noted, EPA’s discharge letter to George listed
several reasons for its conclusion that George’s “skills and
conduct do not match the mission-based needs of this
organization.” Similarly, Brown declared in an affidavit that
George “was terminated because of problems associated with
her conduct and performance,” including “problems interacting
with other staff,” making “rude comments and loud outbursts
which affected the morale of the office,” and deficiencies in
performance. In its brief to this court, EPA argues that no
reasonable jury could conclude that EPA’s reasons for
discharging George were pretextual, because it is “undisputed”
that George “suffered from both conduct and performance
deficiencies while she was employed by the Agency.” Br. for
Appellee at 19.
While there is no doubt that the record contains evidence to
support EPA’s claim that George had “conduct and performance
deficiencies,” this evidence is not undisputed. For one thing,
George’s January 1999 performance review tends to refute the
suggestion that she had problems on the job. The evaluation
states that George “routinely” meets her deadlines, that she
“[w]orks effectively with office staff,” and that her work
“require[s] no more than minor revisions” and “shows
considerable thought, insight and creativeness.” EPA notes,
however, that the testimony of many of the OASBO employees
corroborates EPA’s claims that George “was not adequately
performing her duties, lacked interpersonal skills and disrupted
the working environment.” Br. for Appellee at 18-19. It is true
that some OASBO employees confirmed in affidavits that
George had some of these problems, but the testimonial
statements of these employees paint a different picture and a
15
number are favorable to George. Moreover, save for one
exception, none of the employees ever complained to Brown or
Kelly about George. In the one instance in which an employee
did raise a complaint (relating to George’s failure to identify the
state corresponding to a phone number’s area code when
transcribing Hotline messages), the employee acknowledged
that the issue was a “small point” and “not a big problem.”
Medbery Depo. at 48, reprinted in J.A. 516. This employee
testimony directly undermines EPA’s repeated explanation that
“[OASBO] employees have made numerous complaints to
[Brown] about [George’s] interactions with them, leading to her
conclusion that [George] cannot work effectively with the
group” and that “[v]irtually all of the staff, with the exception of
one, complained about how Ms. George related to them and her
conduct.”
In addition, George has maintained that her work was
satisfactory and that her co-workers were at fault for the
confrontations she had with them. There is nothing to indicate
that her assessment is either incredible or fanciful. Indeed, her
performance evaluation and some of the statements from other
employees support George. Therefore, there is a genuine issue
as to George’s performance and conduct. See Weldon v. Kraft,
Inc., 896 F.2d 793, 800 (3d Cir. 1990) (“[T]here is no rule of
law that the testimony of a discrimination plaintiff, standing
alone, can never make out a case of discrimination that could
withstand a summary judgment motion.”). Combined with
George’s other evidence, there is no question that a reasonable
jury could conclude that George did not suffer from
“performance and conduct deficiencies” and that EPA’s
explanation is therefore not worthy of credence. See 1 LARSON,
supra, § 8.04, at 8-62 (“[P]retext may usually be established by
demonstrating that the employer’s proffered reason is simply
false.”).
16
Furthermore, an employer’s reason need not be false in
order to be pretextual. Here, for instance, George has also
proffered evidence that the white male engineers in her office
escaped discipline despite engaging in verbal arguments and
incorrectly handling Hotline messages, the same conduct for
which George allegedly was fired. EPA responds that this
evidence is not probative of disparate treatment, because the
other engineers in the office were not similarly situated to
George.
“Whether two employees are similarly situated ordinarily
presents a question of fact for the jury.” Graham v. Long Island
R.R., 230 F.3d 34, 39 (2d Cir. 2000); see also Mungin v. Katten
Muchin & Zavis, 116 F.3d 1549, 1555 (D.C. Cir. 1997). EPA
argues, however, that George and the other engineers were not
similarly situated, as a matter of law, because she was a
probationary employee and they were not. EPA is correct that
we have held that probationary employees and permanent
employees are not similarly situated, observing that, under
federal regulations, probationary employees may be terminated
for problems even if those problems would not be good cause
for terminating a permanent employee. See Holbrook, 196 F.3d
at 262; McKenna v. Weinberger, 729 F.2d 783, 789-90 (D.C.
Cir. 1984). See generally 5 C.F.R. §§ 315.801-.806 (2005)
(rules governing probationary employment). Here, however, the
other engineers were not federal civil servants, but were
participants in EPA’s Senior Environmental Employment
Program. George asserts that, as such, these engineers “were de
facto ‘at-will’ employees . . . who could be terminated at any
time, without notice and for any non-discriminatory reason,”
Br. of Appellant at 30, and EPA does not dispute this
characterization. Under these circumstances, we think that a
reasonable jury could conclude that George and the other
engineers were similarly situated.
17
EPA also contends that George and the other engineers
cannot be considered similarly situated because “the testimony
is overwhelming that no OASBO employee engaged in
violations similar in both frequency and severity as to what Ms.
George is alleged to have done here.” Br. for Appellee at 15.
This, however, misses the point. The extent of George’s
violations is itself in genuine dispute. Thus, although EPA is
correct that the evidence does not demonstrate that any other
OASBO employee engaged in violations to the same extent to
which George is alleged to have committed infractions, a
reasonable jury could conclude that other employees engaged in
violations to the same extent as George actually did. Thus, in
light of George’s evidence that EPA’s reasons are not in fact
true, combined with her evidence that, to the extent that they
may be found to be true, they could not have formed the basis
for her discharge in light of similar violations by the other
OASBO engineers, a reasonable jury could decide that EPA’s
reasons are a pretext for discrimination.
We note, however, that just as an employer’s reason need
not be false to be proven pretextual, conversely, proving that an
employer’s reason is false will not always be sufficient to
demonstrate pretext. This is so because an employer’s action
may be justified by a reasonable belief in the validity of the
reason given even though that reason may turn out to be false.
See Fischbach v. D.C. Dep’t of Corr., 86 F.3d 1180, 1183 (D.C.
Cir. 1996) (“Once the employer has articulated a non-
discriminatory explanation for its action . . . the issue is not the
correctness or desirability of the reasons offered but whether the
employer honestly believes in the reasons it offers.” (internal
quotation marks and alterations omitted)). Of course, the fact
that a proffered reason is objectively false may undermine an
employer’s professed honest belief in that reason, but this is not
always so.
18
Accordingly, EPA could prevail on its motion for summary
judgment, despite a genuine dispute over the objective validity
of its reasons, if it were able to demonstrate the absence of a
genuine dispute in the record over whether Kelly honestly and
reasonably believed in those reasons. EPA, however, did not
rely on this theory before us. Rather, EPA’s argument that there
was no genuine dispute over the validity of its reasons was
based on its contention that it was “undisputed” that George in
fact “suffered from both conduct and performance deficiencies.”
See Br. for Appellee at 17-20. On that score, as we have already
discussed, there is indeed a genuine dispute.
Accordingly, we will reverse the District Court’s grant of
summary judgment in favor of EPA on George’s discrimination
claims. Because the argument was not presented to us, our
ruling does not preclude the possibility that EPA might be able
to prevail on a motion for summary judgment based on the
theory that Kelly honestly and reasonably believed the reasons
he gave for George’s discharge. EPA’s success under such a
theory will ultimately depend on whether, in light of whatever
facts George identifies tending to undermine Kelly’s credibility,
it can nevertheless be decided as a matter of law that Kelly
possessed a good-faith belief in those reasons. To the extent that
Brown, though not officially the decisionmaker who fired
George, participated in and influenced Kelly’s decision, her
good-faith belief in the proffered reasons also becomes relevant.
Cf. Griffin v. Wash. Convention Ctr., 142 F.3d 1308, 1312 (D.C.
Cir. 1998) (“[E]vidence of a subordinate’s bias is relevant where
the ultimate decision maker is not insulated from the
subordinate’s influence.”) (citing Stacks v. Southwestern Bell
Yellow Pages, Inc., 27 F.3d 1316, 1323 (8th Cir. 1994) (“[A]n
employer cannot escape responsibility for discrimination when
the facts on which the reviewers rely have been filtered by a
manager determined to purge the labor force of [a protected
class].” (alterations omitted))).
19
C. The Hostile Work Environment Claim
“‘When the workplace is permeated with discriminatory
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, Title VII is violated.’”
Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 78
(1998) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21
(1993) (citations and internal quotation marks omitted)).
George argues that she was subject to such an abusive work
environment, citing her confrontations with her co-workers and
her allegation that she was thrice told to “go back where she
came from.”
“[W]hether an environment is ‘hostile’ or ‘abusive’ can be
determined only by looking at all the circumstances. These may
include the frequency of the discriminatory conduct; its severity;
whether it is physically threatening or humiliating, or a mere
offensive utterance; and whether it unreasonably interferes with
an employee’s work performance.” Harris, 510 U.S. at 23. The
Supreme Court has made it clear that “conduct must be extreme
to amount to a change in the terms and conditions of
employment.” Faragher v. City of Boca Raton, 524 U.S. 775,
788 (1998). For example, “simple teasing, offhand comments,
and isolated incidents (unless extremely serious) will not amount
to discriminatory changes in the terms and conditions of
employment.” Id. (citation and internal quotation marks
omitted). In light of these well-established principles, the
District Court correctly recognized that the facts alleged by
George, even if true, would not permit a reasonable jury to
conclude that George’s workplace was “permeated with
discriminatory intimidation, ridicule, and insult that [was]
sufficiently severe or pervasive to alter the conditions of [her]
employment and create an abusive working environment.” At
best, they constitute exactly the sort of “isolated incidents” that
the Supreme Court has held cannot form the basis for a Title VII
20
violation. Accordingly, the District Court’s grant of summary
judgment to EPA on this claim was proper.
D. The Retaliation Claim
Title VII’s opposition clause makes it unlawful “for an
employer to discriminate against any of his employees . . .
because [the employee] has opposed any practice made an
unlawful employment practice by [Title VII].” 42 U.S.C. §
2000e-3(a). George claims that she was discharged in retaliation
for engaging in such protected activity. She notes that, shortly
after she met with Johnson in the Office of Human Resources,
Brown held a meeting with the clerical staff at which she told
them to “keep their distance” from George because she was
making “complaints.” George also notes that Kelly’s decision
on March 2 to terminate her employment came within hours
after she complained to Kelly and told him that she planned to
file a complaint with the Office of Civil Rights.
We have held that “an employee seeking the protection of
the opposition clause [must] demonstrate a good faith,
reasonable belief that the challenged practice violates Title VII.”
Parker v. Balt. & Ohio R.R. Co., 652 F.2d 1012, 1020 (D.C. Cir.
1981). As noted above, the incidents of which George
complained could not reasonably be thought to constitute an
abusive working environment in violation of Title VII.
Accordingly, George’s complaints to Kelly did not constitute
“oppos[ition]” to a “practice made . . . unlawful” by Title VII
within the meaning of § 2000e-3(a). See Clark County Sch.
Dist. v. Breeden, 532 U.S. 268, 271 (2001) (per curiam).
III. CONCLUSION
For the foregoing reasons, we reverse the judgment of the
District Court with respect to George’s discrimination claims
and affirm its judgment as to the remaining claims. The case is
hereby remanded to the District Court for further proceedings
consistent with this opinion.
So ordered.