Weber v. Battista

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 9, 2007 Decided July 17, 2007

No. 05-5309

ENID W. WEBER,
APPELLANT

v.

ROBERT J. BATTISTA, CHAIRMAN, NATIONAL LABOR
RELATIONS BOARD,
APPELLEE

Appeal from the United States District Court
for the District of Columbia
(No. 01cv00862)

Michael P. Deeds argued the cause and filed the briefs for
appellant.

Alan Burch, Assistant U.S. Attorney, argued the cause for
appellee. With him on the brief were Jeffrey A. Taylor, U.S.
Attorney, and R. Craig Lawrence, Assistant U.S. Attorney.
Michael J. Ryan and Stratton C. Strand, Assistant U.S.
Attorneys, entered appearances.

Before: GINSBURG, Chief Judge, and SENTELLE, Circuit
Judge, and EDWARDS, Senior Circuit Judge.
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Opinion for the Court filed by Chief Judge Ginsburg.

Ginsburg, Chief Judge: Enid Weber appeals from the
summary judgment entered by the district court in favor of her
employer, the National Labor Relations Board, on Weber’s
claim that the Board discriminated against her and, when she
complained, retaliated, all in violation of Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e et seq. We affirm that
judgment insofar as the district court held Weber has not shown
the Board’s explanations for numerous alleged acts of
discrimination were false or that discrimination or retaliation
was among the real reasons for any of them. See St. Mary’s
Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993). We reverse that
judgment insofar as the district court dismissed her claims (1)
that the Board discriminatorily failed to select her for a higher
position, which the court dismissed on the ground that Weber
did not exhaust her administrative remedies; and (2) that certain
performance evaluations, which allegedly caused her not to
receive an award, were not materially “adverse employment
actions.” We remand this case for the district court to resolve on
the merits the claims it dismissed.

I. Background

Enid Weber, an Hispanic woman, was employed by the
Board from 1971 until her retirement in 2006. From 1989
onward she was an Associate Executive Secretary to the
Chairman.

In 1997 Weber sought informal counseling with the Board’s
Office of Equal Employment Opportunity (OEEO), as required
before she could file a Title VII action in district court. See 29
C.F.R. § 1614.105(a). She alleged the Board had discriminated
against her in numerous ways based upon her sex and national
origin and had retaliated against her for complaining by denying
 3

her “equal pay for equal work,” in violation of the Equal Pay
Act, 29 U.S.C. § 206(d). When the parties were unable to
resolve Weber’s grievance informally, she filed a formal
administrative complaint with the OEEO alleging the Board had
discriminated and retaliated against her, in violation of Title VII,
when it: (1) failed to select her to be the Acting Deputy
Executive Secretary; (2) treated her differently than other
employees with regard to her performance appraisal; (3) barred
her from assigning work to the secretarial staff; (4) isolated her
and took measures to keep information from her; (5) denied her
access to Board members, Chief Counsels, Board supervisors,
and Board staffs; (6) chose another employee to handle
“agendas and ... other meetings with the Board members and/or
with Chief Counsels”; and (7) took certain duties away from her.
She also continued to allege that the Board had not paid her as
required by the Equal Pay Act.

On August 9, 1999 Weber sent a memorandum to the
OEEO “amending [her] pending EEO charges to include as an
act of retaliation and/or of discrimination the permanent
reassignment ... of Lester A. Heltzer as Deputy Executive
Secretary ... with ... the consequent bypassing of [Weber].” The
Acting Director of the OEEO responded, saying Weber’s
“amended complaint ... has been accepted for processing,” and
the OEEO’s contractor later investigated the issue raised in the
amendment.

When the time allowed had passed with no final decision
from the OEEO, see 29 C.F.R. §§ 1614.108(e), 1614.110, Weber
filed a complaint in district court raising all the claims listed
above. The district court transferred Weber’s claim under the
Equal Pay Act to the Court of Federal Claims, which has
exclusive jurisdiction over claims against the federal
government exceeding $10,000, and granted partial summary
judgment in favor of the Board on Weber’s Title VII claims.
 4

Weber v. Hurtgen, 297 F. Supp. 2d 58, 62, 69 (D.D.C. 2003)
(Weber I). In the latter respect, the district court first held
Weber had failed to exhaust her administrative remedies insofar
as she amended her formal complaint to add her claim of
nonselection without having first sought informal counseling.
Id. at 66-67. The court also held that neither of the performance
evaluations she challenged amounted to an “adverse
employment action” and therefore did not support a prima facie
case of discrimination or retaliation. Id. at 64-65. More
specifically, the court reasoned that the 1997-98 performance
evaluation, which rated Weber from “fully successful” to
“outstanding” on four “critical elements” without assigning a
“rating of record,” was not adverse because Weber still received
a “special act award” — 80 hours of leave — which was
comparable to what other similarly situated employees had
received as performance awards. Id. at 64. The district court
concluded that Weber’s rating of “commendable” for the 1998-
99 rating period was not an adverse action because it was “not
‘adverse in an absolute sense’” and her “salary and grade were
not impacted.” Id. (quoting Brown v. Brody, 199 F.3d 446, 458
(D.C. Cir. 1999)).

The court also “invite[d] the [Board] to file a renewed
motion for summary judgment on the specific issue of whether
the [Board] had legitimate, nondiscriminatory reasons for the
multitude” of allegedly discriminatory or retaliatory acts of
which Weber had complained. Id. at 69. When the Board did
so, the district court entered summary judgment for the agency,
concluding Weber had failed to meet her burden of proving the
justifications offered by the Board were false and the real reason
was discrimination or retaliation. Weber v. Battista, 2005 WL
4908965, at *1-3 (D.D.C. Mar. 17, 2005).

II. Analysis
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On appeal, Weber first argues the district court erred in
dismissing both her claim regarding her nonselection as Deputy
Executive Secretary on the ground that she had failed to exhaust
her administrative remedies before filing suit, and her claims
regarding her performance ratings, which the court held were
not materially adverse employment actions. Title VII provides
that “[a]ll personnel actions affecting employees ... in executive
agencies ... shall be made free from any discrimination based on
race, color, religion, sex, or national origin.” 42 U.S.C.
§ 2000e-16(a). Where, as here, a plaintiff proffers only indirect
evidence of unlawful discrimination, her case is subject to the
three-part test of McDonnell Douglas Corp. v. Green, 411 U.S.
792, 802-04 (1973):

Under McDonnell Douglas, it is the plaintiff’s burden
to establish a prima facie case of discrimination by a
preponderance of the evidence. If the plaintiff
establishes a prima facie case, the employer must then
articulate a legitimate, nondiscriminatory reason for its
actions. The plaintiff must then demonstrate that the
employer’s stated reason was pretextual and that the
true reason was discriminatory.

Stella v. Mineta, 284 F.3d 135, 144 (D.C. Cir. 2002) (citations
omitted). Accordingly, Weber also argues that she met her
burden of proof by showing each of the numerous acts of which
she complained was a pretext for discrimination or retaliation.

A. Exhaustion

Under regulations promulgated by the Equal Employment
Opportunity Commission (EEOC) to implement Title VII, an
employee of the Executive Branch of the federal government
who believes she has been “discriminated against on the basis of
... sex [or] national origin ... must consult a Counselor [in the
 6

agency’s OEEO] prior to filing a [formal administrative]
complaint in order to try to informally resolve the matter,” and
“must initiate contact with a Counselor within 45 days of the
date of the matter alleged to be discriminatory.”* 29 C.F.R.
§ 1614.105(a)(1). The OEEO “shall dismiss” the complaint
insofar as it “raises a matter that has not been brought to the
attention of a Counselor and is not like or related to a matter that
has been brought to the attention of a Counselor.” 29 C.F.R.
§ 1614.107(a)(2).

The Board contends Weber failed to exhaust the claim
concerning her nonselection because she added it by amending
her formal administrative complaint without first having sought
informal counseling with regard to that claim. According to the
Board, the Supreme Court’s teaching that “[e]ach discrete
discriminatory act starts a new clock for filing charges alleging
that act,” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101,
113 (2002); cf. Ledbetter v. Goodyear Tire & Rubber Co., 127
S. Ct. 2162, 2166-72 (2007), should be applied equally to an
allegedly discriminatory or retaliatory act occurring after the
filing of a formal complaint, because doing so promotes the
informal resolution of claims. See Horton v. Potter, 369 F.3d
906, 908-10 (6th Cir. 2004).

Weber makes two arguments that she did exhaust her
administrative remedies. First, Weber argues her memorandum
of August 9, 1999 to the OEEO “initiate[d] contact with [a] ...
Counselor” within 45 days (indeed, within three days) of the
Board’s having selected Lester Heltzer instead of her to be the
Deputy Executive Secretary. 29 C.F.R. § 1614.105(a)(1).
Alternatively, she contends she properly raised the claim

*
An employee of a covered employer other than the
Executive Branch would file her charge of discrimination or retaliation
with the EEOC. 42 U.S.C. § 2000e-5(e)(1).
 7

regarding her nonselection by amending her formal
administrative complaint to include the new count because her
new claim was “like or related to” the count in that complaint
claiming she had been passed over for the position of Acting
Deputy Executive Secretary. Here she invokes another
regulation of the EEOC, which provides, “A complainant may
amend a complaint at any time prior to the conclusion of the
investigation to include issues or claims like or related to those
raised in the complaint.” § 1614.106(d). As the EEOC has
interpreted this provision, a new claim is “like or related to” a
pending claim if it “could have reasonably been expected to
grow out of the original complaint during the investigation.”
Core v. Brownlee, 2004 WL 189570, at *1 (E.E.O.C. Jan. 23,
2004). If the new claim meets this requirement, then “[t]here is
no requirement that the amendment be subject to counseling.”
Id.

In the wake of Morgan, two circuits have considered and
reached different conclusions with respect to whether a claim
arising after the filing of a formal administrative complaint must
be raised with the EEOC or, if the complaint is against a federal
agency, with the agency’s OEEO, before being brought before
a district court. The Eighth Circuit in Wedow v. City of Kansas
City, 442 F.3d 661, 673-74 (2006), held a plaintiff need not
separately exhaust her administrative remedies with respect to
“subsequent retaliatory acts ... of a like kind to the retaliatory
acts alleged in the EEOC charge, which were specified to be of
an ongoing and continuing nature.” Instead, the Eighth Circuit
entertained such claims, although they were raised for the first
time in the complaint filed in district court. Id. at 672.

In Martinez v. Potter, 347 F.3d 1208, 1210 (2003), the
Tenth Circuit read Morgan as having “effected fundamental
changes to the [continuing violation] doctrine allowing
administratively unexhausted claims in Title VII actions.”
 8

Henceforth, a complainant must start anew before the EEOC or
the employing agency’s OEEO before raising in the district
court a “discrete claim[] based on incidents occurring after the
filing of [the formal administrative] complaint,” see id. at 1210-
11, apparently without regard to whether the after-arising claim
is like or related to a claim in the administrative complaint and
to whether the plaintiff had alleged the discrimination was
ongoing. Id.

In this case, we need not adopt either of the foregoing views
in order to conclude, pursuant to her alternative argument, that
Weber exhausted her administrative remedies with regard to her
claim of discriminatory nonselection for the position of Deputy
Executive Secretary. As contemplated in 29 C.F.R.
§ 1614.106(d) and Core, that claim “could have reasonably been
expected to grow out of” her earlier complaint concerning her
nonselection as Acting Deputy Executive Secretary, and the two
are therefore “like or related.” The OEEO may entertain such
a claim even though it was raised after the filing of the formal
administrative complaint, 29 C.F.R. § 1614.107(a)(2), and here
the OEEO did just that; by inquiring of Weber’s immediate
supervisor, Executive Secretary John Toner, the OEEO
investigated and put the Board on notice of the matter.
Therefore, we conclude Weber gave the Board an opportunity to
resolve her claim administratively before she filed her complaint
in district court. Accordingly, we remand this aspect of the case
for the district court to resolve on its merits Weber’s claim with
respect to her nonselection as Deputy Executive Secretary.

B. Performance Evaluation as Adverse Action

Weber also contends the Board retaliated against her by
lowering the “rating of record” on her performance evaluations
for 1997-98 and 1998-99, as compared to her ratings for
 9

previous years. In order to make out a prima facie case of
retaliation, Weber must demonstrate that she engaged in
protected activity, as a consequence of which her employer took
a materially adverse action against her. Jones v. Wash. Metro.
Area Transit Auth., 205 F.3d 428, 433 (D.C. Cir. 2000); Ethnic
Employees of the Library of Congress v. Boorstin, 751 F.2d
1405, 1415 n.13 (D.C. Cir. 1985) (noting § 2000e-16, which is
silent on the subject, nonetheless prohibits retaliation against a
federal employee who has invoked Title VII). The Board
defends the district court’s holding that neither performance
evaluation was a materially adverse employment action.

Toner rated Weber’s performance for 1997-98 from “fully
successful” to “outstanding” with respect to the four critical
elements of her job, but did not give her an overall rating. For
1998-99, he rated her from “commendable” to “outstanding” on
the same four critical elements and gave her an overall rating of
“commendable.” Weber contends that giving her lower ratings
on critical elements in 1998 and a lower overall performance
rating in 1999 than in past years were adverse actions; they
caused her to lose a performance award, and are therefore
“harmful to the point that they could well dissuade a reasonable
worker from making or supporting a charge of discrimination.”
Burlington N. & Santa Fe Ry. Co. v. White, 126 S. Ct. 2405,
2409 (2006).

The Board contends there is no evidence relevant to
Weber’s contention that the lowered performance ratings in her
performance evaluations for 1997-98 and 1998-99 caused her to
lose a performance award for either period, and points out that
such awards are “optional” with the agency: As provided in a
1994 Administrative Policy Circular, “Employees with ratings
of record of ‘Outstanding’, ‘Commendable’ or ‘Fully successful’
may receive performance awards,” but the failure to receive an
“optional performance award may not be appealed.” Finally, the
 10

Board argues there is no evidence Weber’s performance rating
was “unusual for Weber over the course of her time at the
NLRB” or less favorable than the rating of any comparably
situated employee.

Unlike the Board, we see in the record evidence sufficient
for a reasonable jury to conclude that the Board gave
performance awards upon the basis of each the employee’s
rating of record in his or her annual performance evaluation.
The self-same Administrative Policy Circular upon which the
Board relies flatly states, “The results of performance appraisal
serve as the basis for performance award decisions,” and
“Performance Awards are based on an employee’s rating of
record.” Moreover, Weber’s previous ratings of record and
correlative performance awards are consistent with this causal
relationship. For example, she was rated “outstanding” and
received a quality step increase, apparently as a performance
award, for the 1994-95 rating period. (For the 1995-96 rating
period, Weber received another quality step increase, but the
record does not indicate her rating of record for that period.)
For the 1996-97 rating period, she was rated “Outstanding” and
received a performance award of $2,335.*

In Burke v. Gould, 286 F.3d 513, 522 (D.C. Cir. 2002) we
held the Board “was not entitled to summary judgment on [the
plaintiff’s] 1997 performance evaluation because that review
was conducted after [the plaintiff] engaged in protected activity
... and he sufficiently alleged loss of ‘a tangible, quantifiable
award,’” in the form of a performance or cash award, which he
had received “nearly every year” before he filed a complaint of

*
According to the 1994 Administrative Policy Circular, a
“cash award” may be provided as “[s]pecial recognition for other
types of accomplishments” and given in addition to any performance
award.
 11

discrimination with the Board’s OEEO. See also Russell v.
Principi, 257 F.3d 815, 818-19 (D.C. Cir. 2001) (holding bonus
diminished as result of performance evaluation is adverse action
with respect to Title VII plaintiff alleging lesser performing
colleague received better evaluation and, therefore, larger
bonus). So, too, here; though performance awards are indeed
optional with the employer, the record shows the Board had
opted to give Weber an award in each of the three years
preceding 1998, the year in which she complained of
discrimination and received no such award.

In 1998, Weber did receive a “special act award” of time off
but that does not diminish the significance of her allegation that
she was discriminatorily denied a performance award for the
1997-98 rating period. But for possible retaliation by the Board,
Weber might have received both a performance award and a
special act award, as she did in 1995. Moreover, the two
performance evaluations that Weber challenged, though they
may not, as the district court said, be “adverse in an absolute
sense,” do qualify as adverse actions insofar as they resulted in
her losing a financial award or an award of leave, because a
reasonable jury could conclude that such a loss “could well
dissuade a reasonable worker from making or supporting a
charge of discrimination.” Burlington, 126 S. Ct. at 2409. We
therefore remand this aspect of the case for the district to
determine whether Weber proved her allegation of retaliation
with respect to her nonreceipt of performance awards in 1998
and 1999.

C. Pretext

In order to prove the Board’s explanations for alleged acts
of discrimination or retaliation are pretextual, Weber must show
“both that the reason was false, and that discrimination [or
retaliation] was the real reason.” See St. Mary’s Honor Ctr. v.
 12

Hicks, 509 U.S. 502, 515 (1993). The district court held that
Weber failed to show the Board’s explanations for numerous
alleged acts of discrimination or retaliation were false or that the
real reason was discriminatory or retaliatory.

1. Direct Assignments to Support Staff

The Board “withdrew [Weber’s] ability to directly assign
work to the secretarial staff.” Weber points to a memorandum
from Toner in which he directed that “all requests from [Weber]
for staff support assistance are to go through Mary Ebron as
office manager or in her absence to me.”

In response the Board relies upon Toner’s sworn
declaration, in which he explained that he took this step because
Weber had shown poor judgment in asking one staff member to
type a sensitive memorandum regarding another staff member
who worked at a desk nearby. In addition, he said, four of the
16 members of the support staff had complained about how
Weber had treated them before Toner restricted her ability to
assign tasks to them.

Weber counters that Toner did not restrict her access to
support staff until she made her informal complaint to the OEEO
— timing that Weber argues gives rise to an inference of
retaliation. In his declaration, however, Toner said he had
delayed confronting Weber in order to consult with the Board
about how best to deal with her lapse in judgment. Weber
offered no evidence to cast doubt upon Toner’s explanation or
to show the real reason for limiting her ability to assign tasks to
support staff was discriminatory or retaliatory.

2. Access to Information

Weber alleged the Board left her out of meetings, thereby
 13

denying her access to information necessary to do her job. She
points to an email she wrote (apparently to Messrs. Heltzer and
Toner) asking about new procedures for handling certain types
of cases, which Heltzer had discussed in a meeting with the legal
clerks. As the Board points out, Heltzer responded to that email,
explaining those new procedures to Weber and others. In reply
Weber cites her statement of undisputed material facts, in which
she says the Board “isolated her and took measures [to] restrict
from her information within the Office of the Executive
Secretary.” This statement simply does not show that Heltzer
refused to provide Weber with the information necessary to do
her job, and their exchange of emails suggests the opposite.

3. Access to Board Offices

Weber alleged Toner “denied [her] access to Board
Members, Chief Counsels, Deputy Chief Counsels, Board
supervisors, and Board staff.” Toner explained that he did so
because Weber had shown “extremely poor judgment in her
dealings with Board members.” Specifically, Toner said
Chairman Gould had told him Weber had served as his “spy” in
the Office of the Executive Secretary and was reporting
information to Gould regarding other Board members. Weber
responds that Gould, in a sworn affidavit of his own, denied
Toner’s allegations, claiming instead he told Toner that Weber
was not his spy but his “eyes and ears” and that he relied upon
her to advise him “about the operations of the Board i.e. how it
was functioning and how it should be functioning in connection
with her realm of responsibility.” The terminological quibble is
irrelevant; Toner believed it “inappropriate” for Weber to act as
Gould’s “eyes and ears” and to report to him the activities of
other Board members; accordingly he restricted her access to
certain offices. Weber produced no evidence tending to show
that Toner’s explanation was false or that his real reason was
discrimination or retaliation.
 14

4. Board Agenda Meetings

Weber alleged that Toner “bypassed [her] for participation
in agendas.” Toner countered in his declaration: “To my
knowledge, Ms. Weber never regularly attended Board agenda
... meetings .... I did nothing whatsoever to limit Ms. Weber’s
attendance at such meetings.” In reply, Weber cites her
statement of undisputed material facts, in which she stated that
she was not permitted to attend Board agenda meetings,
although her predecessors as the Associate Executive Secretary
with the most seniority had done. Weber offers nothing,
however, to suggest that she had previously attended such
meetings or that Toner’s denial that he limited her participation
is false and therefore has failed to demonstrate pretext.

5. “C Cases”

Weber alleged the Board took away her responsibility for
handling letters in unfair labor practice cases, known as “C
Cases,” that came to the Board on a stipulated record. Toner
said he did “not recall Ms. Weber having responsibility for
sending out” letters “informing the parties of scheduling and
other matters” in such cases, and she “generally did not perform
this duty.” Toner believed other employees, perhaps staff in the
Solicitor’s Office, had handled that task.

In response, Weber produced a two-sentence letter she sent
to two lawyers in 1998, informing them the Board had “received
the stipulation of facts executed by all parties” and it “will be
forwarded now to the Board for its consideration.” Weber also
produced a statistical analysis of the number of “C cases” filed
and how quickly the Board processed them.

Weber’s evidence does not show the Board’s explanation is
 15

false. A single exemplar of a letter from Weber to the parties
regarding a “C case” is not inconsistent with Toner’s
recollection that Weber was not “generally” responsible for
sending letters to parties in “C cases” with a stipulated record.

6. “Superpanel Cases”

Weber alleged that Toner “removed from [her] the duties of
handling of superpanels.” The Board asserts Weber was and
continued to be responsible for “monitoring” superpanel cases,
but never had been responsible for “handling” them, by which
the Board means she did not attend superpanel meetings, take
notes of the proceeding, or follow up to make sure decisions
were issued on time. Toner explained that either Hollace Enoch
or he performed those tasks. Weber points to Toner’s evaluation
of her work for 1996-97, in which he said “she has done an
outstanding job in monitoring ... superpanel cases,” but that is
obviously consistent with Toner’s explanation. Thus, Weber
failed to show she ever did anything other than monitor
superpanel cases, and hence failed to demonstrate the Board’s
version of events was false.

7. Case Status Reports

Weber also alleged the Board “removed from [her] the
duties of preparation of case status lists.” Toner acknowledges
having taken away Weber’s responsibility for preparing certain
case status reports in 1995, when he first became Executive
Secretary — well before Weber filed her informal complaint —
and explains that he did this so he would be familiar with the
cases pending before the Board, an explanation Weber does not
appear to contradict. Toner also points out that Weber
continued to have responsibility for preparing certain statistical
reports regarding cases pending before the Board.
 16

Weber responds that responsibility for “preparation of the
substantive case lists,” apparently the particular responsibility
with respect to case status reports about which Weber
complained, was reassigned to Heltzer, in proof of which she
provides examples of such lists prepared by him. Missing from
the record, however, is any evidence that Weber ever had
responsibility for preparing “substantive case lists,” an
evidentiary gap consistent with Toner’s explanation that after
1995, Weber had responsibility for preparing only “statistical
reports.” Weber therefore failed to show the Board’s
explanation is false.

8. “R Cases”

Weber alleged the Board “removed from [her] the duties of
handling representational matters.” In his declaration, Toner
said Ms. Enoch generally handled “R cases” and “Ms. Weber
rarely got involved.” In response, Weber cited only an
unauthenticated and therefore inadmissible note she wrote to
Toner purporting to confirm that Toner had said she was “not to
handle [her] R case procedural matters, but to turn them over to
Hollace Enoch.” Because Weber provided no admissible
evidence that she ever had the duty of handling “R Cases,” she
failed to rebut the Board’s explanation.

III. Conclusion

We reverse the judgment of the district court dismissing
Weber’s claim that the Board impermissibly passed her over in
selecting a new Deputy Executive Secretary, and remand this
matter for the district court to adjudicate the merits of that claim.
We also reverse the district court’s judgment of dismissal with
respect to her 1998 and 1999 evaluations, and remand for the
district court to determine whether Weber proved her allegation
that the Board retaliated against her by twice failing to give her
 17

a performance award. The judgment of the district court on the
merits of Weber’s other claims is affirmed.

So ordered.