United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 5, 2007 Decided August 1, 2008
No. 05-5430
CHERYL STEELE,
APPELLANT
v.
ED SCHAFER, SECRETARY OF AGRICULTURE,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 02cv00452)
S. Micah Salb argued the cause for appellant. With him on
the briefs were Richard H. Semsker and Julie Glass Martin-
Korb.
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: GARLAND and GRIFFITH, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge GARLAND.
2
GARLAND, Circuit Judge: On this appeal, Cheryl Steele
contends that the district court wrongly dismissed her claims
against her former employer, the United States Department of
Agriculture, for creating a hostile work environment and
unlawfully retaliating against her in violation of Title VII of the
Civil Rights Act of 1964. We agree. We therefore reverse the
court’s grant of summary judgment against Steele on those
claims.
I
Steele is an African-American woman who worked as an
economist in the U.S. Department of Agriculture (USDA). She
alleges that the USDA -- principally through her supervisor,
James Johnson -- discriminated against her because of her race
in numerous ways, including: intentionally giving her an
incompetent assistant; falsely accusing her of misusing
government credit cards; unjustifiably denying her a promotion;
depriving her of credit for her work; interfering with her
professional development by excluding her from important
projects; and unreasonably denying her several cash awards.
Steele further alleges that, after she complained about her
discriminatory treatment, the Department retaliated against her
by, inter alia: giving her the lowest performance rating of her
career; awarding her the lowest performance bonus in her
branch and half the amount given to all white employees;
denying her a “special act award” in 1999; and denying her a
cash bonus that was given to every other member of her “Y2K”
team that prepared the Department’s technical systems for the
transition to the year 2000. Steele also asserts that the USDA’s
harassment forced her to resign in 2000, and that the Department
continued to retaliate against her after her resignation by falsely
contesting her unemployment benefits at the District of
Columbia Office of Unemployment Compensation.
3
After unsuccessfully pursuing administrative remedies,
Steele filed suit in the district court, asserting Title VII claims of
discrimination, a hostile work environment, retaliation, and
constructive discharge.1 The USDA moved for summary
judgment on all of the claims, and the court granted the motion.
See Order Granting Def.’s Mot. for Summ. J., Steele v.
Veneman, 1:02-cv-00452 (D.D.C. Sept. 28, 2005) (“Order”).
The district court first addressed the timeliness of Steele’s
claims under 29 C.F.R. § 1614.105(a)(1), which requires a
federal employee in the Executive Branch to “initiate contact”
with an Equal Employment Opportunity (EEO) Counselor in her
agency within 45 days of an allegedly discriminatory action.
The court noted a “discrepancy” in the record regarding the date
of Steele’s first contact with an EEO Counselor: different
documents stated that the initial contact occurred in January,
February, and June of 1999. Order at 9 n.3. The court adopted
the June date on the ground that it was the date that Steele
alleged “in her complaint and . . . admissions.” Id.
Accordingly, the court denied relief on those of Steele’s claims
that it found arose more than 45 days before June 18, 1999. Id.
at 11. The court also rejected Steele’s argument that otherwise
untimely claims could be included as part of a timely hostile
work environment claim. Id.
Next, the district court addressed the USDA’s contention
that Steele failed to state a prima facie case of discrimination or
retaliation because a number of the incidents she alleged did not
constitute “adverse employment actions.” Id. The court defined
an “adverse employment action” as “an action that results in
‘materially adverse consequences affecting the terms,
conditions, or privileges of employment.’” Id. (quoting Brown
1
The title of Steele’s complaint mentions “sex discrimination,”
but Steele pursues only claims of racial discrimination on appeal.
4
v. Brody, 199 F.3d 446, 457 (D.C. Cir. 1999)). Under that
definition, the court ruled that at least six incidents could not
constitute actionable discrimination or retaliation. Id. at 12.
Finally, the court granted summary judgment to the USDA
on Steele’s constructive discharge claim. The court explained
that “a constructive discharge claimant must show that (1) her
employer intentionally discriminated against her, (2) the
employer deliberately made her working conditions intolerable,
and (3) aggravating factors justified the claimant’s conclusion
that she had no option but to end her employment.” Id. at 14
(citing Carter v. George Wash. Univ., 180 F. Supp. 2d 97, 110
(D.D.C. 2001)). The court held that Steele could not prevail
because the record “contains no evidence” of “conditions that
were so intolerable, so aggravating, that any reasonable person
would have felt compelled to quit.” Id. at 15.
Without further specification, the district court entered final
judgment in favor of the USDA and dismissed the case. Steele
now appeals. Her briefs do not dispute the dismissal of her
discrimination and constructive discharge claims, see Oral
Argument Rec. 36:44, 37:00 (acknowledgment by Steele’s
counsel that she does not raise those claims on appeal), but do
challenge the district court’s rejection of her retaliation and
hostile work environment claims. We address those challenges
below.
II
This court reviews a district court’s grant of summary
judgment de novo. Waterhouse v. District of Columbia, 298
F.3d 989, 991 (D.C. Cir. 2002). Summary judgment may be
granted only if “there is no genuine issue as to any material fact
and . . . the movant is entitled to judgment as a matter of law.”
FED. R. CIV. P. 56(c). A fact is material if it “might affect the
5
outcome of the suit under the governing law,” and 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 v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
“[A]t 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.
Steele argues that the district court’s decisions regarding her
hostile work environment and retaliation claims rested on three
legal errors. We agree. First, in determining that several of
Steele’s claims were time-barred, the court failed to
acknowledge that a genuine issue of material fact existed as to
the date of Steele’s contact with an EEO counselor. Although
the district court’s opinion was oblique as to the scope of its
ruling, that date affects both Steele’s hostile work environment
and retaliation claims. Second, regarding Steele’s hostile work
environment claim, the court adopted a timeliness rule that is
inconsistent with the Supreme Court’s decision in National
Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002), and
as a consequence never reached the merits of that claim. Third,
the court applied a standard for retaliation claims that is
inconsistent with the Supreme Court’s decision in Burlington
Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006).
Although the government acknowledges that the district
court erred, it invites us to review the evidence de novo and
affirm on other grounds. We decline the invitation. In light of
the tangled record on appeal, we lack confidence that we have
all of the information necessary to conduct such a review.
6
In the following subparts, we present our analysis in more
detail. Part II.A addresses the district court’s error in granting
summary judgment with respect to the timeliness of certain of
Steele’s claims, notwithstanding the existence of a genuine issue
of material fact. Part II.B discusses the court’s adoption of an
erroneous timeliness rule for Steele’s hostile work environment
claim. Finally, Part II.C examines the court’s application of an
inapposite standard for evaluating Steele’s retaliation claims.
A
An employee of the federal government who believes that
she has been the subject of unlawful discrimination must
“initiate contact” with an EEO Counselor in her agency “within
45 days of the date of the matter alleged to be discriminatory.”
29 C.F.R. § 1614.105(a)(1); see Weber v. Battista, 494 F.3d 179,
182-83 (D.C. Cir. 2007); see also 42 U.S.C. § 2000e-16.
“Because timely exhaustion of administrative remedies is a
prerequisite to a Title VII action against the federal
government,” a court may not consider a discrimination claim
that has not been exhausted in this manner absent a basis for
equitable tolling. Stewart v. Ashcroft, 352 F.3d 422, 426 (D.C.
Cir. 2003); see Greer v. Paulson, 505 F.3d 1306, 1316-17 (D.C.
Cir. 2007).
The district court held that Steele’s first contact with an
EEO Counselor was June 18, 1999, and that those of her claims
involving incidents that took place more than 45 days before that
date were therefore barred. Steele’s complaint does state that,
“[f]rom June 18, 1999, to April, 2000, . . . Steele took issues
regarding discriminatory treatment . . . to an EEO counselor at
defendant agency.” Compl. ¶ 6. But the complaint does not say
that this was the only period in which she contacted a counselor,
and, as the district court noted, other documents in the record
create a “discrepancy” regarding the first contact date. Order at
7
9 n.3. Steele’s admissions to the USDA, submitted as an exhibit
to the government’s motion for summary judgment, state:
“[Steele] contacted an EEO Counselor for the first time in
January, 1999, but did not pursue filing a formal complaint at
that time. The Plaintiff contacted an EEO Counselor again in
June 1999 to file a formal complaint.” Pl.’s Admis. ¶ 8.
Moreover, the USDA’s own Record of Investigation states that
Steele “made initial contact with an EEO Counselor on February
22, 1999.” JA 185. At the summary judgment stage, the district
court was not free to resolve this disputed issue by disregarding
the January and February dates.
Although we cannot tell from the district court’s Order how
many incidents it thought could not be considered based on the
erroneously chosen contact date, there is no doubt that the date
is material to Steele’s hostile work environment and retaliation
claims. To the extent the district court relied on the June 1999
date in rejecting or limiting those claims, its judgment is
reversed.
B
The district court also rejected Steele’s contention that, even
if some of her individual claims were time-barred, she could still
rely on their underlying events to support her claim that she was
subjected to a hostile work environment. See Order at 11.
Accordingly, the court dismissed that claim without reaching the
merits. This was error.
In National Railroad Passenger Corp. v. Morgan, the
Supreme Court explained that “[h]ostile environment claims are
different in kind from discrete acts” because “[t]heir very nature
involves repeated conduct.” 536 U.S. 101, 115 (2002).
Therefore, the Court held, “[p]rovided that an act contributing
to the claim occurs within the filing period, the entire time
8
period of the hostile environment may be considered by a court
for the purposes of determining liability.” Id. at 117. This is
precisely the rule that the district court rejected in Steele’s case,
and the USDA concedes that the court’s holding was incorrect.
See Oral Argument Rec. 28:12.
Notwithstanding the district court’s error, the USDA urges
us to affirm the judgment on several independent grounds.
First, the Department contends that Steele did not assert a
hostile work environment claim in her complaint. This
argument is unavailing. The complaint alleges “discrimination,”
which in principle includes a hostile work environment theory;
it also specifically requests Steele’s reassignment “to a less
hostile working environment.” Compl. at 1, 12. Moreover,
Steele indisputably raises a constructive discharge claim
premised on a hostile work environment, and under
Pennsylvania State Police v. Suders, 532 U.S. 129, 133-34
(2004), the facts necessary to prove a hostile work environment
are a subset of those necessary to prove this type of constructive
discharge. Indeed, the government’s motion for summary
judgment acknowledged that Steele “appears to allege that all
the events alleged in the complaint caused her to experience a
hostile work environment,” and it both sought summary
judgment on that claim and responded to it (a response qualified,
to be sure, by the observation that it responded to such a claim
“to the extent” raised). Def.’s Mem. of P. & A. at 2, 17-19; see
also Def.’s Mot. for Summ. J. Steele’s opposition responded by
expressly contesting the government’s motion as to that claim.
See Pl.’s Opp’n to Def.’s Mot. for Summ. J. at 4-6. Given all
these circumstances, and in the absence of any apparent
prejudice, we think it too late to argue that the plaintiff never
asserted such a claim.
9
Second, the USDA argues that, even if Steele did assert a
hostile work environment claim, we should affirm because the
district court effectively reached and rejected the merits of that
claim by ruling against Steele on her constructive discharge
claim. The district court, the government maintains, “rightly
interpreted [Steele’s hostile work environment claim] to be
coextensive with her constructive discharge claim.” Appellee’s
Br. 13. But as the Supreme Court made clear in Suders, the
standards for hostile work environment and constructive
discharge claims are not coextensive. 542 U.S. at 133-34
(2004). To establish hostile work environment claims under
Title VII, the Court explained, plaintiffs “must show harassing
behavior ‘sufficiently severe or pervasive to alter the conditions
of [their] employment.’” Id. at 133 (alteration in original)
(quoting Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 67
(1986)). “Beyond that, . . . to establish ‘constructive discharge,’
the plaintiff must make a further showing: She must show that
the abusive working environment became so intolerable that her
resignation qualified as a fitting response.” Id. at 134. The
district court’s rejection of Steele’s constructive discharge claim
on the ground that she did not show working conditions “so
intolerable, so aggravating, that any reasonable person would
have felt compelled to quit,” Order at 15, simply does not
address whether Steele successfully made the lesser showing
that she experienced severe or pervasive harassment that altered
the conditions of her employment. Accordingly, the district
court’s holding as to the former does not suffice to warrant
rejection of Steele’s hostile work environment claim.
Finally, the government invites us to affirm the district
court’s judgment on the alternative basis that Steele’s
allegations fail as a matter of law to rise to the level of
actionable harassment. As noted at the outset, we think the
more prudent course is to allow the district court to decide this
issue on remand. See Doe v. DiGenova, 779 F.2d 74, 89 (D.C.
10
Cir. 1985) (“‘It is the general rule, of course, that a federal
appellate court does not consider an issue not passed upon
below.’” (quoting Singleton v. Wulff, 428 U.S. 106, 120
(1976))). In remanding the issue, we express no opinion as to
whether Steele’s hostile work environment claim is meritorious.
C
Title VII’s anti-discrimination provision makes it unlawful
for an employer “to discriminate against any individual with
respect to his compensation, terms, conditions, or privileges of
employment, because of such individual’s race.” 42 U.S.C. §
2000e-2(a). Title VII’s anti-retaliation provision makes it
unlawful for an employer “to discriminate against [an]
employee[] . . . because he has opposed any practice” made
unlawful by Title VII or “has made a charge, testified, assisted,
or participated in” a Title VII proceeding. Id. § 2000e-3(a). The
district court held that, for retaliatory conduct to be actionable,
it must meet the same standard required for discriminatory
conduct -- i.e., it must constitute an “adverse employment
action,” which the court defined as “an action that results in
‘materially adverse consequences affecting the terms,
conditions, or privileges of employment.’” Order at 11 (quoting
Brody, 199 F.3d at 457). Under that standard, the court found
that a number of Steele’s retaliation claims did not survive
review. Id. at 12.
Nine months after the district court dismissed Steele’s
claims, the Supreme Court decided Burlington Northern &
Santa Fe Railway Co. v. White, 548 U.S. 53 (2006). In
Burlington, the Court expressly rejected the Sixth Circuit’s
standard for retaliation claims, which was the same standard that
circuit applied to substantive discrimination claims and identical
to the standard applied by the district court in this case. The
Sixth Circuit’s view was that, to succeed on a retaliation claim,
11
“a plaintiff must show an ‘adverse employment action,’ which
[that circuit] defined as a ‘materially adverse change in the
terms and conditions’ of employment.” Id. at 60 (quoting White
v. Burlington N. & Santa Fe Ry. Co., 364 F.3d 789, 795 (6th Cir.
2004)). Finding that the “language of the substantive provision
differs from that of the anti-retaliation provision in important
ways,” id. at 61, the Supreme Court concluded that “Title VII’s
substantive provision and its anti-retaliation provision are not
coterminous,” and that the “scope of the anti-retaliation
provision extends beyond workplace-related or
employment-related retaliatory acts and harm,” id. at 67.
As to “how harmful an act of retaliatory discrimination
must be in order to fall within the provision’s scope,” id. at 61,
the Court “agree[d] with the formulation” this court set forth in
Rochon v. Gonzalez: “In our view, a plaintiff must show that a
reasonable employee would have found the challenged action
materially adverse, ‘which in this context means it well might
have dissuaded a reasonable worker from making or supporting
a charge of discrimination.’” Id. at 68 (quoting Rochon, 438
F.3d 1211, 1219 (D.C. Cir. 2006) (internal quotation marks
omitted)). That standard does not require consideration either
of the severity of the underlying act of discrimination to which
the employee objected, or -- as the USDA insists -- of the
courage that particular employee demonstrated by reporting it
(and hence of her asserted imperviousness to acts of retaliation).
Indeed, Burlington expressly forecloses such considerations. Id.
at 69 (“[T]his standard does not require a reviewing court or jury
to consider the nature of the discrimination that led to the filing
of the charge.” (internal quotation marks omitted)); id. at 68
(“We refer to reactions of a reasonable employee because we
believe that the provision’s standard for judging harm must be
objective.”).
12
In light of the Court’s decision in Burlington, the
government concedes that the district court applied the wrong
standard for retaliatory conduct. It nonetheless urges us to
affirm on the ground that Steele’s allegations do not in any event
constitute actionable retaliation. Appellee’s Br. 19. As we have
already explained, the state of the record and the factual
intricacies intertwined with some of the allegations make us
unwilling to delve into most of the questions that the district
court did not address.
We do note, however, that at least four alleged incidents
that Steele describes as retaliatory -- the denial of the Y2K
award, the issuance of the lowest performance rating of her
career combined with the lowest performance bonus in her
branch, the denial of the special act award, and the false report
to the D.C. Office of Unemployment Compensation contesting
her unemployment benefits -- involve conduct that this court or
the Supreme Court has already indicated can support a
retaliation claim. As the district court correctly noted, we held
in Russell v. Principi that a cash bonus diminished as a result of
a poor performance evaluation can constitute a cognizable action
under Title VII. Order at 13 (citing 257 F.3d 815, 819 (D.C. Cir.
2001)); see also Weber, 494 F.3d at 184-86 (D.C. Cir. 2007)
(holding that two performance evaluations “qualif[ied] as
adverse actions” under Burlington “insofar as they resulted in
. . . losing a financial award or an award of leave”). And in
Burlington, the Supreme Court indicated that a false report to
government authorities can constitute retaliation, citing with
approval the Tenth Circuit’s finding of “actionable retaliation
where [an] employer filed false criminal charges against [a]
former employee who complained about discrimination.” 548
U.S. at 64 (citing Berry v. Stevinson Chevrolet, 74 F.3d 980,
984, 986 (10th Cir. 1996)).
13
We express no opinion as to whether the actions alleged in
Steele’s remaining retaliation claims can constitute “materially
adverse actions.” On remand, the district court should apply the
Burlington standard to those allegedly retaliatory actions that it
determines took place after Steele complained about
discriminatory conduct, and that it finds are otherwise properly
before the court.
III
For the foregoing reasons, we reverse the dismissal of
Steele’s hostile work environment and retaliation claims and
remand the case for further proceedings consistent with this
opinion.
Reversed and remanded.