Geleta v. Gray

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 6, 2010 Decided June 17, 2011

No. 10-7026

NICHOLAS GELETA,
APPELLANT

v.

VINCENT GRAY, MAYOR, DISTRICT OF COLUMBIA AND
DEPARTMENT OF MENTAL HEALTH,
APPELLEES

Appeal from the United States District Court
for the District of Columbia
(No. 1:06-cv-01822)

Ellen K. Renaud argued the cause for appellant. With her
on the briefs were Richard L. Swick and David H. Shapiro.

Stacy L. Anderson, Assistant Attorney General, Office of
the Attorney General for the District of Columbia, argued the
cause for appellees. With her on the brief were Peter J.
Nickles, Attorney General, Todd S. Kim, Solicitor General,
and Donna M. Murasky, Deputy Solicitor General.

Before: GINSBURG, HENDERSON, and GRIFFITH, Circuit
Judges.
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Opinion for the Court filed by Circuit Judge GRIFFITH.

GRIFFITH, Circuit Judge: Appellant Nicholas Geleta
alleges he was transferred to a position of less responsibility
within the District of Columbia Department of Mental Health
in retaliation for his statements corroborating a claim of racial
discrimination against a Department official. The district
court granted summary judgment for the District on the
ground that Geleta failed to show that his transfer was a
materially adverse employment action. For the reasons set
forth below, we reverse and remand to the district court for
further proceedings.

I

In 2001, appellant Nicholas Geleta helped the
Department of Mental Health obtain a five-year grant from
the U.S. Department of Health and Human Services (HHS)
for a citywide mental health initiative for children with
serious emotional disorders and their families. The project,
known as D.C. Children Inspired Now Gain Strength (DC
CINGS), sought to unite various children’s mental health
programs throughout the District into a single system of care.
In April 2002, Geleta became DC CINGS’s Project Director,
a position that involved supervising approximately twenty
employees and overseeing the planning, implementation, and
evaluation of DC CINGS operations.

In June 2004, as part of its annual grant reauthorization
process, HHS identified several terms and conditions DC
CINGS needed to satisfy to ensure continued funding. These
involved housekeeping matters such as submitting quarterly
reports, creating communications and sustainability plans, and
filling a particular position by a certain date. Four months
later, in October 2004, representatives from HHS visited DC
CINGS to assess the program’s progress and compliance with
 3
grant conditions. The site visitors issued a report on
November 15, 2004, discussing the project’s strengths and
offering various recommendations for improvement. The
report singled out Geleta’s “dedicated leadership” as one of
the project’s strengths, Def. Ex. B, at 14, and recommended,
among other things, targeting services to particular
subgroups, expanding outreach efforts, and increasing
community involvement in program decisionmaking, id. at 3-
5. The report also announced that a follow-up visit would
occur in six months to review progress on the
recommendations, id. at 5, and reiterated that failure to
comply with the terms and conditions of the reauthorization
“may result in . . . suspension of funding,” id. at 6.

On October 12, 2004, about a month before HHS issued
its report, Geleta attended a meeting with several other senior
Department of Mental Health officials, including Velva
Spriggs, Geleta’s direct supervisor; Ella Thomas, the Director
of Policy and Planning and Spriggs’s supervisor; and Mary
Phillips, the Director of the Department’s Juvenile
Assessment Center. At the meeting, Spriggs, a black woman,
and Phillips, a white woman, had a heated argument over
whether Phillips reported to Spriggs. According to Spriggs,
Phillips called her a “bitch” and said, “My mother told me not
to deal with people of your kind.”

Spriggs filed a complaint with the District’s Equal
Employment Opportunity Office (EEOO) alleging racial
discrimination. Following an investigation, on January 12,
2005, the EEOO submitted a report to the Department along
with written statements from Geleta and the others who were
at the October 12 meeting. In his statement, Geleta
corroborated Spriggs’s claims and said that he believed
Phillips’s conduct toward Spriggs “could be interpreted as
racially charged.” Statement of Nicholas Geleta 2 (Dec. 21,
 4
2004). The EEOO report concluded that a preponderance of
the evidence supported a finding that Spriggs had been the
victim of racial discrimination in violation of D.C. Code § 2-
1402.11.

According to Geleta, sometime in late February 2005
Thomas told him he needed to find a new position. Decl. of
Nicholas Geleta ¶ 4. Thomas declined to give a reason why,
but Geleta alleges it was because he had supported Spriggs’s
discrimination charge. Thomas relieved Geleta of his duties
as Project Director on March 3, 2005, and detailed him to the
Department’s Office of Accountability (OA). Geleta claims
his new job at OA had significantly narrower and less
important responsibilities than his previous position at DC
CINGS. For example, according to Susan Curran, Geleta’s
first supervisor at OA, during the time she worked with
Geleta he did not have a job description, but instead worked
as her “right arm” in helping to “clear up a backlog” of
treatment center applications. Decl. of Susan Curran ¶ 8.
After approximately eight months at OA, Geleta became its
Residential Treatment Center Certification and Monitoring
Projects Manager. He entered the position at Grade 14, Step
6, the same grade and one step higher than he had been at DC
CINGS. In October 2007, the District converted Geleta’s
position at OA to a Management Supervisory Service
position. Although his job duties did not change, he received
a substantial pay raise.

On October 23, 2006, Geleta filed a complaint in the
district court alleging retaliation under Title VII of the Civil
Rights Act of 1964. Title VII prohibits discrimination by an
employer against an employee because of the employee’s
“race, color, religion, sex, or national origin.” 42 U.S.C.
§ 2000e-2(a). Title VII’s anti-retaliation provision further
prohibits employer actions that discriminate against an
 5
employee because the employee has “made a charge, testified,
assisted, or participated in any manner” in a Title VII
“investigation, proceeding, or hearing.” Id. § 2000e-3(a). The
district court granted the District’s motion for summary
judgment on February 19, 2010. We have jurisdiction over
Geleta’s appeal under 28 U.S.C. § 1291.

II

Summary judgment is appropriate when “the movant
shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). We review a grant of summary
judgment de novo, drawing all reasonable inferences from the
evidence in the light most favorable to the nonmoving party.
Salazar v. Wash. Metro. Area Transit Auth., 401 F.3d 504,
507 (D.C. Cir. 2005).

We analyze Title VII retaliation claims under the familiar
three-step framework of McDonnell-Douglas Corp. v. Green,
411 U.S. 792 (1973), as we restated it in Brady v. Office of
Sergeant at Arms, 520 F.3d 490 (D.C. Cir. 2008), and Jones
v. Bernanke, 557 F.3d 670 (D.C. Cir. 2009). To make out a
prima facie case of retaliation, a plaintiff must show “(1) that
he engaged in statutorily protected activity; (2) that he
suffered a materially adverse action by his employer; and
(3) that a causal link connects the two.” Gaujacq v. EDF, Inc.,
601 F.3d 565, 577 (D.C. Cir. 2010) (quoting Jones, 557 F.3d
at 677). “[W]here an employee has suffered an adverse
employment action and an employer has asserted a legitimate,
non-discriminatory reason for the decision,” however,
whether the plaintiff has made out a prima facie case is no
longer relevant. Brady, 520 F.3d at 494. Rather, “a court
reviewing summary judgment looks to whether a reasonable
jury could infer retaliation from all the evidence, which
 6
includes not only the prima facie case but also the evidence
the plaintiff offers to attack the employer’s proffered
explanation for its action and other evidence of retaliation.”
Gaujacq, 601 F.3d at 577 (quoting Jones, 557 F.3d at 677)
(internal quotation mark omitted).

Drawing all reasonable inferences from the evidence in
Geleta’s favor, we conclude a reasonable jury could find that
he suffered an adverse employment action when the District
transferred him away from his position as Project Director of
DC CINGS and that the District’s proffered explanation for
the transfer is a pretext for retaliation. Accordingly, we find
“a material dispute on the ultimate issue of retaliation,” Jones,
557 F.3d at 678, and reverse the district court’s grant of
summary judgment for the District.

A

We consider first whether a reasonable jury could
conclude that Geleta suffered a materially adverse
employment action. “An employment action is materially
adverse where it ‘well might have dissuaded a reasonable
worker from making or supporting a charge of
discrimination.’” Pardo-Kronemann v. Donovan, 601 F.3d
599, 607 (D.C. Cir. 2010) (quoting Burlington N. & Santa Fe
Ry. Co. v. White, 548 U.S. 53, 68 (2006)). A “lateral
transfer”—that is, a transfer involving “no diminution in pay
and benefits”—may qualify as a materially adverse
employment action if it “result[s] in ‘materially adverse
consequences affecting the terms, conditions, or privileges’ of
the plaintiff’s employment.” Id. (quoting Stewart v. Ashcroft,
352 F.3d 422, 426 (D.C. Cir. 2003)).

Geleta contends that he suffered a materially adverse
employment action when he was transferred to OA because
he lost all supervisory responsibilities and experienced
 7
significantly diminished programmatic responsibilities. See
Czekalski v. Peters, 475 F.3d 360, 364 (D.C. Cir. 2007)
(“[W]ithdrawing an employee’s supervisory duties . . .
constitutes an adverse employment action.” (quoting Stewart,
352 F.3d at 426) (internal quotation marks omitted)); id. at
365 (observing that “reassignment . . . with significantly
diminished responsibilities” would constitute an adverse
employment action). The District responds that Geleta’s new
position at OA carried the same salary, benefits, and prestige
as his previous position at DC CINGS, and that aside from
supervisory responsibilities his new position “was in all other
respects comparable” to the old one. Appellees’ Br. 26-27. In
particular, the District relies on the official position
description for Geleta’s job as Residential Treatment Center
Certification and Monitoring Projects Manager, which lists
numerous important responsibilities such as developing and
administering “operational programs” and serving as “the
single point of coordination” for “all investigations initiated
by [OA].” Def. Ex. G.

We think a reasonable jury could find that Geleta’s
transfer was a materially adverse employment action. To
begin with, Geleta produced evidence that he suffered a
complete loss of supervisory responsibilities in the transfer.
According to the official position description for his job at
DC CINGS, as Project Director Geleta supervised a staff of
approximately twenty employees. According to his deposition
testimony, however, after he moved to OA he did not
supervise any employees. Susan Curran, Geleta’s initial
supervisor at OA, confirms this. See Decl. of Susan Curran
¶ 8.

Geleta also presented evidence that his position at OA
involved narrower and less important programmatic
responsibilities than his previous position at DC CINGS. At
 8
his deposition, Geleta testified that his role at DC CINGS was
to “try[] to fund and try to get the State to work together to
build coherent unified systems” for “children’s mental health
services.” Geleta Dep. 45-46. His official position description
further states that he was “responsible for providing
leadership in the overall project planning, organization,
direction, coordination, monitoring, implementation, and
evaluation of all aspects of the DC CINGS Project and its
component parts.” Def. Ex. K. According to Geleta, his work
at OA is very different. In his deposition, he claimed that his
current job focuses primarily on three activities: certifying
treatment centers, reviewing treatment centers’ compliance
with District licensing requirements, and monitoring a
database of complaints. See Geleta Dep. 90-92. No longer is
he the leader of a important citywide effort to create a unified
children’s mental health system. Instead, he certifies, reviews,
and monitors. Further, according to Curran, during the time
she worked with Geleta at OA he was not “responsible for
developing or implementing any programs or projects.” Decl.
of Susan Curran ¶ 8 (emphasis added). Rather, “[h]is main
duty was to help [her] clear up a backlog of residential
treatment center certification applications.” Id.

The District contends that these statements by Geleta and
Curran are “conclusory” and “lack context” and are therefore
improper evidence for summary judgment. See Greene v.
Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999) (stating that
“conclusory” statements that lack “supporting facts” cannot
defeat a summary judgment motion). We disagree. Geleta’s
and Curran’s statements are unlike the sort of allegations
unsupported by facts that we have refused to consider in other
cases. See, e.g., Ass’n of Flight Attendants-CWA v. U.S. Dep’t
of Transp., 564 F.3d 462, 466 (D.C. Cir. 2009) (refusing to
consider claim where affiant demonstrated no “personal
knowledge” of the matter); Greene, 164 F.3d at 675 (refusing
 9
to consider allegation that employer hired applicant with “less
experience” because affiant provided no “supporting facts”
for her claim). Geleta’s lack of supervisory responsibilities is
a fact known personally to Geleta and Curran, as is the fact
that Geleta’s main duty at OA was to help Curran clear a
backlog of certification applications. No further factual
background is necessary to support these claims.
In sum, Geleta provides evidence that he went from
overseeing a broad-based mental health unification project at
DC CINGS in which he supervised twenty employees to a
desk job at OA where he supervised no one and spent his time
clearing a bureaucratic backlog. This sort of significant
change might well dissuade a reasonable worker from
speaking out in support of a charge of discrimination. Geleta
has provided sufficient evidence for a reasonable jury to
conclude that he suffered a materially adverse employment
action.
B
A reasonable jury could also conclude that the District’s
proffered reasons for transferring Geleta are pretextual. Once
an employer articulates a legitimate, nondiscriminatory
reason for its adverse employment action, the “central
question” on summary judgment is whether “the employee
produced sufficient evidence for a reasonable jury to find that
the employer’s asserted non-discriminatory reason was not
the actual reason and that the employer intentionally
discriminated [or retaliated] against the employee on the basis
of race.” Brady, 520 F.3d at 494. Put differently, once an
employer offers a nondiscriminatory reason for its action, “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 [or retaliatory] reason.” Kersey v. Wash.
 10
Metro. Area Transit Auth., 586 F.3d 13, 17 (D.C. Cir. 2009)
(quoting Lathram v. Snow, 336 F.3d 1085, 1088 (D.C. Cir.
2003)) (alteration in original); see also Desmond v. Mukasey,
530 F.3d 944, 963-64 (D.C. Cir. 2008).
In its brief, the District contends that Geleta’s transfer
was a “legitimate and necessary part of the realignment that
[the Department of Mental Health] implemented in an effort
to comply with multiple federal funding mandates imposed by
[HHS].” Appellees’ Br. 33. The District points to the several
“priority recommendations” listed in the November 2004
HHS site visit report, as well as the report’s warning that
failure to comply with the terms and conditions of the 2004
reauthorization grant could “result in additional actions, up to
and including possible suspension of funding.” Def. Ex. B, at
6. The District claims that “[i]n response to this report, [the
Department] determined to restructure and eventually
dismantle the DC CINGS program.” Appellees’ Br. 32.
We think a reasonable jury could find that the District’s
proffered reasons are a pretext for retaliation.* First, the
District’s reasons for transferring Geleta have changed over
time. According to Geleta’s deposition testimony, when he
asked Thomas in February 2005 why he needed to find a new
position, she told him to make up a reason. Geleta Dep. 82.
When Geleta asked what she meant, Thomas replied, “[I]t’s
not performance, you know, it’s just—whatever reason you
feel—whatever you feel comfortable with.” Id. Then, in its
response to Geleta’s first set of interrogatories, the District
stated that Geleta was transferred “because the DC CINGS

*
The District concedes that Geleta’s statements corroborating
Spriggs’s complaint were statutorily protected activities. See 42
U.S.C. § 2000e-3(a) (protecting from retaliation an employee who
“testifie[s], assist[s], or participate[s] in any manner in an
investigation” under Title VII).
 11
program was dismantled and Dr. Geleta had been the Project
Director for that Program.” Def.’s Resps. & Objections to
Pl.’s First Set of Interrogs. ¶ 4. On summary judgment and
now in its brief to this court, however, the District argues that
Geleta was transferred because the Department of Mental
Health decided to “realign[]” DC CINGS and implement a
“new vision” for the program. Appellees’ Br. 33. Such
shifting and inconsistent justifications are “probative of
pretext.” EEOC v. Sears Roebuck & Co., 243 F.3d 846, 853
(4th Cir. 2001); see also Domínguez-Cruz v. Suttle Caribe,
Inc., 202 F.3d 424, 432 (1st Cir. 2000) (“[W]hen a company,
at different times, gives different and arguably inconsistent
explanations, a jury may infer that the articulated reasons are
pretextual.”); Thurman v. Yellow Freight Sys., Inc., 90 F.3d
1160, 1167 (6th Cir. 1996) (“An employer’s changing
rationale for making an adverse employment decision can be
evidence of pretext.”).
Second, a reasonable jury could conclude that the
District’s claim that it “realigned” DC CINGS to comply with
federal funding mandates is itself not credible. The District
argued in its summary judgment motion that it reassigned
Geleta “as part of its continuing effort to maintain its federal
funding for the DC CINGS program.” Mem. in Supp. of
Def.’s Mot. for Summ. J. 13; see also id. (“[I]n an effort to
comply with the multiple federal funding mandates imposed
by [HHS], [the Department of Mental Health] changed the
leadership of the DC CINGS program and sought to take the
program in a new direction.”). But it is unclear how or why
transferring Geleta and revising DC CINGS’s “vision” was
necessary for the program to maintain its funding. The
November 2004 site visit report stated that failure to comply
with certain terms and conditions may result in “possible
suspension of funding,” Def. Ex. B, at 6, but these terms and
conditions had nothing to do with Geleta’s leadership or DC
 12
CINGS’s “vision.” Rather, they concerned matters like
submitting quarterly reports and filling a vacant position. See
id. at 5-6. The District has produced no evidence that Geleta
was unable to fill positions or submit reports on time, or that
transferring him would have any impact on those
requirements.
Further, the terms and conditions in the site visit report
are the very same terms and conditions found in the 2004
reauthorization grant, which predated the report by at least
four months. The District knew about these funding
conditions for months, but only after Geleta engaged in
protected activity did it decide to transfer him. A jury could
reasonably infer pretext from these facts. See Czekalski, 475
F.3d at 366 (“[O]ne way for a plaintiff to show that an
adverse employment decision was made for a discriminatory
[or retaliatory] reason is to ‘show[] that the nondiscriminatory
explanation the defendant proffered for its decision was
false.’” (quoting Lathram, 336 F.3d at 1089) (third alteration
in original)).
Also undercutting the District’s claim that transferring
Geleta was part of an effort “to maintain its federal funding
for the DC CINGS program” is the fact that the Department
dismantled DC CINGS within one year of Geleta’s
reassignment. If the District’s true purpose for “realigning”
DC CINGS was to ensure the program’s continued funding, it
seems strange that the Department eliminated the program so
soon thereafter.
Finally, there is evidence in Curran’s declaration that
Department Director Martha Knisley was angry at Geleta for
supporting Spriggs and ordered him to be fired. According to
Curran, Thomas told her in early 2005 that Thomas had
received instructions from Knisley to fire Geleta. Curran
further recounts that when Knisley learned Geleta had instead
 13
been transferred to OA she called Thomas and Curran into her
office and angrily upbraided them. Curran says Knisley
warned that not firing Geleta was “a grave mistake” and
exclaimed, “[D]on’t you know what he’s done?” Decl. of
Susan Curran ¶ 10. Although these two brief accounts could
benefit from further factual development, we find them
sufficiently probative of pretext to warrant a jury’s
consideration.
The District protests that Thomas’s alleged statement to
Curran is “inadmissible hearsay” and therefore not competent
summary judgment evidence. See Greer v. Paulson, 505 F.3d
1306, 1315 (D.C. Cir. 2007) (“‘[S]heer hearsay’ . . . ‘counts
for nothing’ on summary judgment.” (quoting Gleklen v.
Democratic Cong. Campaign Comm., Inc., 199 F.3d 1365,
1369 (D.C. Cir. 2000))). But Thomas’s statement is not
hearsay. Federal Rule of Evidence 801(d)(2)(D) excludes
from the hearsay rule “a statement by the party’s agent or
servant concerning a matter within the scope of the agency or
employment, made during the existence of the relationship.”
Because Geleta filed suit against the mayor of D.C. in his
official capacity, the District is a party to the suit and
statements by District employees concerning matters within
the scope of their employment are admissible against the
District. See Wilburn v. Robinson, 480 F.3d 1140, 1148 (D.C.
Cir. 2007). Knisley and Thomas were both District
employees, and Knisley’s alleged instruction to fire Geleta
and Thomas’s statement relaying this instruction to Curran
concerned a matter within the scope of their employment. The
statements therefore fall within Rule 801(d)(2)(D).
Viewed in the light most favorable to Geleta, the
evidence in the record is sufficient for a reasonable jury to
conclude that the District’s proffered reasons for transferring
him are pretextual and that he was transferred in retaliation
 14
for supporting Spriggs’s complaint. The district court erred by
granting summary judgment for the District.
III
For the foregoing reasons, we reverse the judgment of the
district court and remand for further proceedings.
So ordered.