United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 18, 2006 Decided February 2, 2007
No. 05-5221
LONI CZEKALSKI,
APPELLANT
v.
MARY E. PETERS, SECRETARY OF TRANSPORTATION,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 02cv01403)
Ellen K. Renaud argued the cause for appellant. With her
on the briefs was David H. Shapiro.
Darrell C. Valdez, Assistant U.S. Attorney, was on the brief
for appellee. With him on the brief were Kenneth L. Wainstein,
U.S. Attorney at the time the brief was filed, and R. Craig
Lawrence, Assistant U.S. Attorney. Michael J. Ryan, Assistant
U.S. Attorney, entered an appearance.
Before: ROGERS and GARLAND, Circuit Judges, and
SILBERMAN, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge GARLAND.
2
GARLAND, Circuit Judge: In 1997, the Federal Aviation
Administration reassigned appellant Loni Czekalski -- then a
senior career official -- to a new position with different
responsibilities. She alleges that the reassignment was
effectively a demotion, and that it resulted from gender bias on
the part of her immediate supervisor. Because this allegation
must be resolved in a jury room rather than in the pages of the
Federal Reporter, we reverse the magistrate judge’s grant of
summary judgment in favor of the government.
I
Czekalski began working for the Federal Aviation
Administration (FAA) in 1970, rising through the ranks to
become a member of the Senior Executive Service (SES). In
November 1994, she became Director of the Office of
Communication, Navigation, and Surveillance Systems (known
as “AND”), with responsibility for several hundred employees,
multiple programs, and an annual budget of approximately $400
million. Czekalski reported directly to George Donohue, the
FAA’s Associate Administrator for Research and Acquisitions,
who had selected her for the position.
On June 12, 1997, Donohue reassigned Czekalski from the
position of Director of AND to that of Program Manager of the
Year 2000 (Y2K) Project, a program within the Office of
Information Technology. By memorandum, he advised her that
he was making the reassignment because she had “not
performed up to the standards I expect from my direct reports,
particularly in the area of communications.” Donohue Mem. at
1 (June 12, 1997). The memorandum listed four specific areas
in which Donohue said Czekalski’s performance had been
unsatisfactory. Although he stated that this was “a lateral move
involving no loss of pay or SES status,” id. at 2, there were some
undeniable changes in the nature of her job: she now reported to
3
a former peer, supervised fewer than ten employees, managed a
single program, and did not have a separate budget.
Shortly after receiving Donohue’s memorandum, Czekalski
sent her own memorandum to the Secretary of Transportation,
rebutting Donohue’s stated reasons for the reassignment and
asking the Secretary to restore her to the position of AND
Director. Czekalski Mem. (June 16, 1997). This prompted an
investigation by the Office of Inspector General (OIG), which
reviewed the dueling memoranda, interviewed both parties, and
prepared a brief report summarizing its findings.
On July 12, 2002, after exhausting her administrative
remedies, Czekalski filed suit against then-Secretary Norman
Mineta in his official capacity. The complaint alleged that her
reassignment was motivated by gender discrimination, in
violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e et seq. Thereafter, the parties agreed that the district
court should refer the case to a magistrate judge for all purposes.
See 28 U.S.C. § 636(c)(1).
On March 31, 2005, the magistrate judge granted the
Secretary’s motion for summary judgment pursuant to Federal
Rule of Civil Procedure 56. The magistrate found that
Czekalski failed to make out a prima facie case of gender
discrimination, both because Czekalski’s reassignment did “not
rise to the level of an actionable adverse employment action,”
and because she failed to “demonstrate that she and a similarly
situated person outside her protected class were treated
disparately.” Czekalski v. Mineta, No. 02-cv-1403, slip op. at 16
(D.D.C. Apr. 21, 2005). The magistrate also held that, “[e]ven
if Plaintiff could make out a prima facie case, she failed to rebut
the Defendant’s legitimate, nondiscriminatory reasons for the
reassignment.” Id. This appeal followed.
4
II
We review the magistrate judge’s decision to grant
summary judgment de novo. Waterhouse v. District of
Columbia, 298 F.3d 989, 991 (D.C. Cir. 2002); see 28 U.S.C. §
636(c)(3). Summary judgment is appropriate only if “there is no
genuine issue as to any material fact and . . . the moving party is
entitled to judgment as a matter of law.” FED. R. CIV. P. 56(c);
see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48
(1986). A dispute about a material fact is genuine “if the
evidence is such that a reasonable jury could return a verdict for
the nonmoving party,” Anderson, 477 U.S. at 248, and a moving
party is entitled to judgment as a matter of law only if the
nonmoving party “fails to make a showing sufficient to establish
the existence of an essential element to that party’s case, and on
which that party will bear the burden of proof at trial,” Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986). We must view the
evidence in the light most favorable to the nonmoving party
(here, Czekalski), draw all reasonable inferences in her favor,
and eschew making credibility determinations or weighing the
evidence. See Reeves v. Sanderson Plumbing Prods., 530 U.S.
133, 150 (2000); Aka v. Washington Hosp. Ctr., 156 F.3d 1284,
1288 (D.C. Cir. 1998) (en banc).
Title VII prohibits federal agencies from discriminating in
employment on the basis of sex. The statute requires that “[a]ll
personnel actions affecting employees . . . in [federal] agencies
. . . shall be made free from any discrimination based on race,
color, religion, sex, or national origin.” 42 U.S.C. § 2000e-
16(a). Although this language differs from that of the provision
governing private employers, see 42 U.S.C. § 2000e-2(a), we
have held that the two contain identical prohibitions, see, e.g.,
Singletary v. District of Columbia, 351 F.3d 519, 523-24 (D.C.
Cir. 2003) (citing, inter alia, Bundy v. Jackson, 641 F.2d 934,
942 (D.C. Cir. 1981)).
5
Where, as here, the plaintiff’s claim of discrimination is
principally supported by circumstantial evidence, we analyze the
claim under the framework first set forth in McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802-05 (1973). Under that
framework, “the plaintiff must [first] establish a prima facie case
of discrimination.” Reeves, 530 U.S. at 142. Once she has done
that, the burden shifts to the defendant, who must “articulate
some legitimate, nondiscriminatory reason” for the adverse
action. McDonnell Douglas, 411 U.S. at 802; see Reeves, 530
U.S. at 142. If the defendant satisfies that burden, “the
McDonnell Douglas framework -- with its presumptions and
burdens -- disappear[s], and the sole remaining issue [is]
discrimination vel non.” Reeves, 530 U.S. at 142-43 (citations
and internal quotation marks omitted). Thereafter, to “survive
summary judgment the plaintiff must show that a reasonable
jury could conclude from all of the evidence that the adverse
employment decision was made for a discriminatory reason.”
Lathram v. Snow, 336 F.3d 1085, 1088 (D.C. Cir. 2003) (citing
Aka, 156 F.3d at 1290).
The evidence that must be considered 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) or any contrary evidence that may be available to the
employer (such as evidence of a strong track record in equal
opportunity employment).” Aka, 156 F.3d at 1289. We
consider these three evidentiary categories below.
III
We begin with the plaintiff’s prima facie case. Before
doing so, however, we note that the defendant has already
6
articulated nondiscriminatory reasons for Czekalski’s
reassignment, in the form of the reassignment memorandum that
Donohue sent her. As the Supreme Court has explained, once
a defendant has proffered such a nondiscriminatory explanation,
it has “done everything that would be required of [it] if the
plaintiff had properly made out a prima facie case.” U.S. Postal
Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715 (1983). At
that point, “whether the plaintiff really did so is no longer
relevant,” and the only question is “‘whether the defendant
intentionally discriminated against the plaintiff.’” Id. (quoting
Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253
(1981)); see Morgan v. Fed. Home Loan Mortgage Corp., 328
F.3d 647, 653-54 (D.C. Cir. 2003); Waterhouse, 298 F.3d at 993
n.6. Accordingly, we evaluate Czekalski’s prima facie case not
to determine whether it was properly established, “but rather
because [her] prima facie case is part of the evidence we must
consider in addressing th[e] question” of whether she has
created a genuine issue of gender discrimination. George v.
Leavitt, 407 F.3d 405, 413 (D.C. Cir. 2005).
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.’” Id. at 412 (quoting Stella v.
Mineta, 284 F.3d 135, 145 (D.C. Cir. 2002)) (additional internal
quotation marks and citation omitted). The magistrate judge
correctly found the first prong satisfied. The magistrate erred,
however, in holding that Czekalski failed to establish both of the
other two prongs.
A
In support of the magistrate’s holding that the reassignment
did not constitute an adverse action, the government argues that,
7
“[b]ecause [Czekalski] did not experience any loss of salary,
grade level, or benefits, her reassignment is properly
characterized as a ‘lateral transfer.’” Appellee’s Br. 15.
Although the government is “correct in considering this case as
one of lateral transfer,” it errs in its implied premise that a lateral
transfer cannot constitute an adverse action. Stewart v. Ashcroft,
352 F.3d 422, 426 (D.C. Cir. 2003). To the contrary, “there are
lateral transfers that could be considered adverse employment
actions.” Id. “[W]ithdrawing an employee’s supervisory
duties,” for example, “constitutes an adverse employment
action.” Id.; see Burke v. Gould, 286 F.3d 513, 522 (D.C. Cir.
2002). So, too, does “reassignment with significantly different
responsibilities.” Forkkio v. Powell, 306 F.3d 1127, 1131 (D.C.
Cir. 2002) (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S.
742, 761 (1998)); see Holcomb v. Powell, 433 F.3d 889, 902
(D.C. Cir. 2006).
Czekalski has raised a genuine issue as to whether the
reassignment left her with “significantly different” -- and
diminished -- supervisory and programmatic responsibilities.
According to Czekalski, as Director of AND she oversaw 260
federal employees, approximately 700 contract employees, over
fifty separate programs, and an annual budget of approximately
$400 million. Czekalski Mem. at 1. Donohue’s estimation is
not materially different: he testified that at AND, Czekalski had
approximately 500 employees and a budget of approximately
$750 million per year. Donohue Dep. at 49-50, 122. After the
reassignment, by contrast, Czekalski testified that she supervised
fewer than ten employees and worked primarily on just one
program -- the Y2K initiative -- with “little to no budget of [its]
own.” Czekalski Dep. at 108 (Sept. 25, 2000). Donohue did not
disagree. Donohue Dep. at 123-24.
Czekalski also proffered evidence that the reassignment
moved her down the FAA hierarchy. Prior to the reassignment,
8
Czekalski reported directly to Donohue. At that time, Donohue
agreed, Czekalski “was a colleague on an equal level with”
another manager, Theron Grey, who Donohue also supervised.
Donohue Dep. at 120. After the reassignment, however,
Czekalski reported not to Donohue but to Grey, who continued
to report to Donohue. See id. In short, the reassignment left
Czekalski reporting to a former peer.
The defendant contends that, notwithstanding the difference
in responsibilities, the reassignment was not an adverse action
because “the new Y2K program was of ‘extreme importance’ to
the agency.” Appellee’s Br. 16 (quoting Donohue Dep. at 120).
In support of that proposition, the defendant submitted evidence
that the Y2K program was a “priority” initiative at the FAA.
Donohue Dep. at 121; DeGaetano Dep. at 26-27. But Czekalski
introduced substantial evidence showing that, at the time she
took the helm in 1997, the Y2K initiative was not as important
to the FAA as her prior responsibilities were.1 We also note that
a reasonable jury could well find it difficult to reconcile the
government’s insistence that the Y2K job was a position of
“extreme importance” to the agency, with Donohue’s assertion
that he reassigned her to that position because she had failed to
perform up to expected standards.
Whether a particular reassignment of duties constitutes an
adverse action for purposes of Title VII is generally a jury
1
See Carrico Dep. at 26 (stating that Czekalski’s prior position,
Director of AND, was “much more important to the agency” than her
new role working on information technology); Crossetti Decl. at 2
(declaring that, “[w]hile the Year 2000 Project was important, in June
of 1997, it was not as highly visible as” other programs that had
previously been under Czekalski’s purview); Zaidman Dep. at 70
(stating that the FAA did not recognize the Y2K issue “as being [a]
really critical thing” until 1998 or 1999).
9
question. See Burlington N. & Santa Fe Ry. Co. v. White, 126
S. Ct. 2405, 2417 (2006). The court may not take that question
away from the jury if a reasonable juror could find that the
reassignment left the plaintiff with significantly diminished
responsibilities. See Holcomb, 433 F.3d at 902. Viewing the
evidence in the light most favorable to Czekalski, we conclude
that a reasonable juror could find that Czekalski suffered an
adverse action.
B
The magistrate judge further concluded that Czekalski
failed to establish a prima facie case because “a trier of fact
[would have] no basis to draw an inference that gender was a
factor in Mr. Donohue’s decision to demote” her. Czekalski v.
Mineta, slip op. at 16. In support, the magistrate held that, to
establish a prima facie case, a “plaintiff must demonstrate that
she and a similarly situated person outside her protected class
were treated disparately,” and that Czekalski failed to so
demonstrate. Id. As we said in George v. Leavitt, however,
“[t]his is not a correct statement of the law.” 407 F.3d at 412.
Although “[o]ne method by which a plaintiff can satisfy the
third prong of [the prima facie] test is by demonstrating that she
was treated differently from similarly situated employees who
are not part of the protected class, . . . this is not the only way.”
Id. In a discharge case, we explained, another way would be to
show that “the discharge was not attributable to the two [most]
common legitimate reasons for discharge: performance below
the employer’s legitimate expectations or the elimination of the
plaintiff’s position altogether.” Id. The same suffices in a
reassignment case like this one. Here, there is no claim that
Czekalski’s reassignment was “precipitated by the elimination
of her job” and, as explained in the next Part, she has “created
a genuine issue as to whether she was performing at a
satisfactory level.” Id. at 413.
10
As we noted in George, “[w]e make [these] point[s] on the
prima facie case not to ‘evade[] the ultimate question of
discrimination vel non,’ but rather because [Czekalski’s] prima
facie case is part of the evidence we must consider in addressing
that question.” Id. (quoting Aikens, 460 U.S. at 714). The heart
of Czekalski’s evidence, however, is not the minimal showing
required for her prima facie case, but rather the evidence that we
consider in Parts IV and V.
IV
The principal evidence of discrimination upon which
Czekalski relies is her “attack [on] the employer’s proffered
explanations for its actions.” Aka, 156 F.3d at 1289. We have
noted many times before that one way for a plaintiff to show that
an adverse employment decision was made for a discriminatory
reason is to “show[] that the nondiscriminatory explanation the
defendant proffered for its decision was false.” Lathram, 336
F.3d at 1089; see, e.g., Murray v. Gilmore, 406 F.3d 708, 716
(D.C. Cir. 2005); Salazar v. Washington Metro. Transit Auth.,
401 F.3d 504, 511-12 (D.C. Cir. 2005); Anderson v. Zubieta,
180 F.3d 329, 348 (D.C. Cir. 1999); Aka, 156 F.3d at 1293-94.
As the Supreme Court has explained, “[p]roof that the
defendant’s explanation is unworthy of credence is simply one
form of circumstantial evidence that is probative of intentional
discrimination, and it may be quite persuasive.” Reeves, 530
U.S. at 147. In “appropriate circumstances, the trier of fact can
reasonably infer from the falsity of the explanation that the
employer is dissembling to cover up a discriminatory purpose.”
Id.
Donohue outlined his nondiscriminatory explanation in the
memorandum he sent Czekalski notifying her of the
reassignment. The memorandum advised Czekalski that he was
reassigning her because she had “not performed up to the
11
standards I expect from my direct reports,” and it identified four
specific programs as to which Czekalski’s performance had been
lacking. Czekalski responded with a memorandum of her own
(which she subsequently supplemented by her deposition), and
the OIG then investigated. The OIG’s report largely confirmed
Czekalski’s rebuttals; indeed, it noted that Donohue withdrew
several of his assertions in the course of his OIG interview.2
The first performance failure that Donohue identified
involved the FAA’s Wide Area Augmentation System (WAAS).
Donohue’s memorandum to Czekalski stated that, “[f]or more
than two years now, . . . you have failed to bring my attention to
under-reporting of costs associated with the Wide Area
Augmentation System.” Donohue Mem. at 1. In response,
Czekalski wrote that she had briefed Donohue regarding the
WAAS cost overruns as early as October 1996, eight months
before her reassignment. Czekalski Mem. at 2. When
confronted with this response in his interview with the OIG,
Donohue conceded that “any focus on WAAS problems in his
memorandum is a ‘complete red herring’ and that Ms.
Czekalski’s reassignment from her position was not the result of
WAAS.” OIG Mem. at 2. The OIG’s report concluded that
“Czekalski’s written rebuttal addressing specific statements on
WAAS made in Dr. Donohue’s memorandum w[as] generally
valid.” Id. at 3.
2
The Government contends that the OIG report is “inadmissible”
because it “is made up of inadmissible conclusions and multiple level
hearsay that are not ‘evidence’ for purposes of a summary judgment
motion.” Appellee’s Br. 30. The magistrate judge did not so rule and,
to the contrary, it appears that the OIG report would be admissible as
a public report under Federal Rule of Evidence 803(8), and that the
statements Donohue made to his OIG interviewers (recited in the
report) would be admissible as admissions by a party-opponent under
Rule 801(d)(2).
12
The second failure identified by Donohue involved the
National Airspace Integrated Management System (NIMS).
Donohue stated that Czekalski had “failed to make me aware of
the deteriorating leadership problem with the NIMS program,”
and that “[n]ow, we are at a point where ATS [Air Traffic
Services] feels the situation has gotten so bad that we need to
transfer leadership to ATS.” Donohue Mem. at 1. Czekalski
responded that she had remedied the leadership problems within
NIMS by replacing several employees, and that “these personnel
actions and results were communicated to Dr. Donohue.”
Czekalski Mem. at 3. By the time of his OIG interview,
Donohue had retreated from this charge as well, stating his view
that “NIMS project leadership should not be changed and should
not be transferred to Air Traffic Services.” OIG Mem. at 4.
Third, Donohue wrote Czekalski that “you also have failed
to provide the [Integrated Product Teams] the kind of direction
and support they need to carry out their work,” particularly “the
team working on the next-generation radio.” Donohue Mem. at
2. But Czekalski pointed out that her office did not have
responsibility for directing and developing the next-generation
radio effort mentioned by Donohue. Czekalski Mem. at 3.
Again, Donohue essentially conceded the issue when he spoke
with the OIG. He told the OIG that the next-generation radio
project was in the “investment analysis phase,” and “confirmed
statements in Ms. Czekalski’s . . . memorandum . . . that projects
in [that] phase are the responsibility of another office.” OIG
Mem. at 5.
Finally, Donohue’s memorandum complained that
Czekalski had “allow[ed] the [Automatic Dependent
Surveillance - Broadcast (ADS-B)] program to languish.”
Donohue Mem. at 2. In response, Czekalski stated that she
could not be charged with allowing the ADS-B program to
languish, because the program had not been funded during her
13
time as director. Czekalski Mem. at 3. The OIG largely
“confirmed Ms. Czekalski’s statement.” OIG Mem. at 6.
To be sure, in both his OIG interview and subsequent
deposition, Donohue attempted to “clarif[y]” some of the
assertions in his 1997 memorandum and to “change the period
of time for which he claimed to be uninformed” by Czekalski.
OIG Mem. at 3; see Donohue Dep. at 126-28. But there is no
question that Czekalski proffered evidence from which a jury
could have concluded that each of the four reasons offered in the
contemporaneous memorandum was false, and that Donohue’s
subsequent clarifications represented nothing more than back-
pedaling. From this evidence, a jury could have concluded that
“the employer’s stated reason was pretextual and that the true
reason was discriminatory.” Stella, 284 F.3d at 144 (citing
McDonnell Douglas, 411 U.S. at 804). Based on the record
before us, “we see no circumstances . . . that would preclude a
rational factfinder from inferring discrimination from pretext.”
Murray, 406 F.3d at 715 (D.C. Cir. 2005).
V
Finally, we consider “any further evidence of discrimination
that may be available to the plaintiff,” as well as “any contrary
evidence that may be available to the employer.” Aka, 156 F.3d
at 1289.
Czekalski offered independent evidence that Donohue
harbored discriminatory attitudes toward women. Burton
Gifford, a male employee in AND, testified that Donohue “just
doesn’t give women, that I have observed, any credibility for
what they’re saying, or even acknowledge they said it, in some
cases.” Gifford Dep. at 80. He also testified that Donohue gave
male employees “preference in program responsibilities, which
included apparent forgiveness for slippag[es] in schedule and or
14
costs,” while treating female employees with similar difficulties
dismissively. Id. at 20-21. Another male employee, Dr. Charles
Overby, testified that Donohue treated women in a “sexist” and
“demeaning” manner. Overby Dep. at 40.
Both men pointed to specific events to substantiate their
testimony. Gifford described an incident in which Donohue
turned his back on a female subordinate who disagreed with him
in a meeting. Gifford Dep. at 79; see also id. (“[Donohue] turns
away from it and refuses to deal with it when women are making
these comments. He just turns to someone else and goes on with
his agenda, as opposed to when a man . . . makes that type of
statement.”). And Overby related an episode in which Donohue
was “cavalier and rude” to a high-ranking female administrator
in a belittling way -- essentially telling her that “[y]ou don’t
have to worry your head about that.” Overby Dep. at 39.
In Aka v. Washington Hospital Center, we recognized that
evidence “of discriminatory statements or attitudes on the part
of the employer” may support a verdict for a Title VII plaintiff.
156 F.3d at 1289; see also Dunaway v. Int’l Bhd. of Teamsters,
310 F.3d 758 (D.C. Cir. 2002) (reversing a grant of summary
judgment to an employer in a Title VII case where, inter alia, a
supervisor had made disparaging comments about the plaintiff’s
gender and ethnic background). When viewed in conjunction
with Czekalski’s strong evidence of pretext, this testimony
would permit a reasonable jury to rule in her favor.
To counter this evidence of animus, the government relies
on testimony tending to show that “Dr. Donohue was rude and
dismissive toward most other employees, male and female.”
Appellee’s Br. 10. In the government’s view, Donohue was
apparently an equal-opportunity abuser, who “treated both men
and women harshly.” Id. at 24. Perhaps. But Czekalski’s
witnesses testified to the contrary. See Gifford Dep. at 21, 80
15
(testifying that Donohue treated women differently, and far
more dismissively, than he treated men); Overby Statement at 1
(same). This is a dispute we cannot resolve without evaluating
witness credibility and weighing the evidence, neither of which
is appropriate at the summary judgment stage.
The government also points to the fact that Donohue, “being
fully aware that [Czekalski was] a female,” was the person who
selected her for the position of Director of AND in the first
place, and who subsequently recommended her for a Senior
Executive Service pay level increase. Appellee’s Br. 29-30. To
be sure, this is probative evidence against the claim that he
harbored a general animus against female employees. See
Waterhouse, 298 F.3d at 996. But the fact that Donohue once
promoted Czekalski cannot immunize him from liability for
subsequent discrimination, nor is it alone sufficient to keep this
case from the jury. In light of all of Czekalski’s evidence, a
reasonable trier of fact could conclude that Donahue reassigned
her for a discriminatory reason.
VI
Because we find that a reasonable jury could render a
verdict in favor of Czekalski, the magistrate judge’s grant of
summary judgment in favor of the government is
Reversed.