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D.C. Circuit


Payne v. Salazar, --- F.3d ----, 110 FEP 264 (D.C. Cir. Sept. 7, 2010). Panel: GARLAND, Ginsburg, Henderson. Claims on Appeal: Title VII retaliation. Disposition Below:  Dismissal for failure to state a claim, Fed. R. Civ. P. 12(b)(6) [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Federal employee with multiple Title VII claims under 42 U.S.C. § 2000e-16 may accept the results of a winning claim at administrative level, while also proceeding to federal court with the losing ones. EEOC administrative judge had found that agency had discriminated against plaintiff on account of her religion, but did not retaliate. Applying plain-meaning reading to the relevant Title VII section, federal employees "aggrieved by the final disposition of [a] complaint . . . may file a civil action." 42 U.S.C. § 2000e-16(c). Employee who does not win all of the claims raised in EEO complaint is aggrieved by that disposition. But employee is no sense "aggrieved by" the claim won before the agency, and there is nothing in the text of section 2000e-16(c) that requires employee to include that claim in a case filed in court. Moreover, section 2000e-16(c) authorizes the employee to file in federal court after "final action taken by a department [or] agency." Nothing in the statutory language renders such "final" agency action nonfinal merely because the employee files a civil action. Panel affirms dismissal of second retaliation claim on the ground that employee failed to administratively exhaust it, and claim was not "like or reasonable related to" her other claim.

Aliotta v. Bair, 614 F.3d 556, 109 FEP 1701 (D.C. Cir. 2010). Panel: BROWN, Sentelle, Ginsburg. Claims on Appeal: 1. ADEA disparate treatment termination. 2. ADEA disparate impact termination. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Pattern-or-practice method of proof probably waived by failure to argue at summary judgment phase in district court. In any event, employees did not meet prima facie requirements, because statistical evidence used to establish that age discrimination was "standard operating procedure" under Teamsters was unreliable; plaintiffs' expert failed to factor our voluntary buyouts from involuntary terminations. addition ally, employer met its rebuttal burden to establish a non-discriminatory explanation for the RIF (decreased workload, need to improve efficiency), not shown to be pretextual, and used an alternative statistical analysis to show no age pattern in the layoffs, or if anything a negative effect on younger employees. Alleged remark by agency head that he wanted younger people around him was not offered in an admissible form Evidence of younger new hires not probative because they were hired into a different set of duties than the RIFed employees. 2. Employees failed to establish an adverse employment action in the buyout program, because employees who accepted the buyout were voluntary departures. Constructive discharge applied at most to only a few individuals and for the rest the possibility of termination was speculative. No evidence that undue pressure was put on employees to accept the buyout. Although the RIF would be an adverse employment action, the statistical evidence was inadmissible because the failure to account for employee choice made it unreliable.

Mogenhan v. Napolitano, 613 F.3d 1162, 23 A.D. Cases 705 (D.C. Cir. 2010). Panel: GARLAND, Henderson, Edwards. Claims on Appeal: 1. Rehabilitation Act retaliation. 2. Rehabilitation Act reasonable accommodation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Affirmed [defendant]. Grounds: 1. Genuine issue of material fact whether posting employee's EEO complaint on the Secret Service intranet, where fellow employees could and did access it, and increasing her caseload to five to six times that of other employees (indicating that he was "doing so 'to keep [her] too busy to file complaints'") were materially adverse. 2. No evidence that requested accommodations for migraines (ventilation, move to air conditioned office, ability to take breaks outside or go on worker's compensation) were unreasonably delayed.

McFadden v. Ballard Spahr Andrews & Ingersoll, LLP, 611 F.3d 1, 109 FEP 1057, 23 A.D. Cases 518 (D.C. Cir. 2010). Panel: GINSBURG, Brown, Griffith. Claims on Appeal: 1. Title VII, §1981 and D.C. law reassignment and termination (race). 2. AD and D.C. law reasonable accommodation. 3. Title VII, §1981, AD and D.C. law FMLA claim (not discussed here). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. 3. Affirmed [defendant]. Grounds: 1. Reason given by employer for termination - that the plaintiff was unable to perform the essential function of a legal secretary due to disability - was a legitimate, non-discriminatory reason, because it does not violate the law to terminate employee who cannot perform a job with or without reasonable accommodations. In any event, reason was not a pretext for discrimination; allegedly comparable employees did not suffer from permanent medical conditions. 2. Employee with Graves' disease, depression and other conditions not entitled to reassignment from secretary to receptionist as reasonable accommodation. Position was not presently vacant (the permanent employee was then on medical leave but expected to return) and employee could not perform essential functions of that position (punctuality, reliability). 3. In addition to the above-holding that there was no evidence of pretext, alleged statements that the firm had too many sick people that and plaintiff ought to resign and save everybody trouble not probative of intent to retaliate for exercise of protected rights.

Murthy v. Vilsack, 609 F.3d 460 (D.C. Cir. 2010). Panel:  ROGERS, Tatel, Griffith. Claims on Appeal:  Title VII promotion. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Court had jurisdiction to review decision granting summary judgment in Title VII claim where plaintiff's contract claim (for breach of Title VII settlement) was transferred back to Court of Federal Claims, which would lack jurisdiction over the Title VII facet of the case and otherwise claim would evade any judicial review. On the merits, the claim was barred because employee did not wait 180 days to commence case per 42 U.S.C. § 2000e-16(c).

Porter v. Shah, 606 F.3d 809,109 FEP 653 (D.C. Cir. 2010). Panel:  HENDERSON, Rogers, Garland. Claims on Appeal:  1. Title VII retaliation. 2. Title VII promotion (race). 3. Title VII performance evaluation (race). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. Outcome on Appeal:  1. Affirmed [defendant].2. Reversed in part [plaintiff].3. Reversed in part [defendant]. Grounds: Adverse decision against plaintiff in prior show-cause contempt action on the same claims was res judicata. Plaintiff had opportunity for full and fair hearing by submitting documentary evidence, and could have appealed adverse outcome but did not. That burden of proof was heavier than ordinary civil litigation and damages were not available is not determinative of preclusion. 2. On some claims, employee did not demonstrate "stark superiority" to successful candidates, and there was no evidence indicative of pretext or discrimination, where overhaul of organization applied to all applicants equally. But summary judgment was improper on transfer where plaintiff's educational credentials (with and MS in business) were clearly superior to the successful candidate (who was a high school graduate) 3. As to one 2003 interim assessment, which was delivered orally and not placed in the employee's file, there is no proof of an adverse action. For the 2004 review, rating of "Unacceptable Performance" that was in writing, placed in file, combined with a performance improvement plan, and having potential consequences for future employment in agency (i.e., exposed to removal, reduction in grade, or reassignment) did constitute adverse action.

Brooks v. District Hosp. Partners, L.P., 606 F.3d 800, 109 FEP 648 (D.C. Cir. 2010). Panel:  BROWN, Sentelle, Griffith. Claims on Appeal:  Title VII disparate impact testing (race). Disposition Below: Individual plaintiffs dismissed [defendant]. Outcome on Appeal:  On interlocutory appeal, reversed [plaintiff]. Grounds: Court had appellate jurisdiction, where district court properly certified under Fed. R. Civ. P. 54(b); district court did not abuse discretion by adopting plaintiffs' proposed order. District court erred in dismissing plaintiffs in action who were joined in the case under the single-filing exception, who did not file individual charges but where other plaintiffs had already done so with respect to policy of using screening test for nursing assistants. Plaintiffs were severed under Fed. R. Civ. P. 42(b) - where they remained part of the original case, and thus could benefit from single-filing rule - rather than simply dropped under Fed. R. Civ. P. 21 and made a separate action.

Moses v. Howard University Hosp., 606 F.3d 789, 109 FEP 641 (D.C. Cir. 2010). Panel: EDWARDS, Sentelle, Tatel. Claims on Appeal: Title VII and D.C. law retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal:  Affirmed [defendant]. Grounds: Employee failed twice to list the claim in a 2003 Chapter 7 bankruptcy and a 2007 Chapter 13 bankruptcy, as required by 11 U.S.C. §§ 521(1) and 541(a)(1). While employee had standing to pursue the appeal (trustee abandoned claim to debtor) and his notice of appeal was timely (the filing period having been tolled by the trustee's participation in the case), his omission of the Title VII claim from the two statements before the bankruptcy court thereby barred the claim by operation of judicial estoppel (i.e., the positions were clearly inconsistent, the first proceeding terminated in the plaintiff's favor, to allow the plaintiff to assert an inconsistent position in the present action would be unfair).

Pardo-Kronemann v. Donvan, 601 F.3d 599, 108 FEP 1734 (D.C. Cir. 2010). Panel:  TATEL, Rogers [WILLIAMS, dissenting]. Claims on Appeal: 1. Title VII retaliation (transfer). 2. Title VII retaliation (suspension). Disposition Below:  1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Affirmed [defendant]. Grounds: 1. Record presents genuine issue of material fact about whether employee's transfer was materially adverse because it deprived him of professional duties (i.e., practicing law) that he occupied at Department of Housing and Urban Development prior to his one-year detail serving temporarily at a different agency (Inter-American Bank). Jury could find that proffered reason for transferring employee - desire to move employee to office where he would be more productive and happy - was pretextual: (1) testimony of manager appeared to suggest actual reason was to move a "problem" employee; (2) office to which he was transferred (OIA) was known to be running out of funding; and that there would be no legal work; (3) no one consulted with employee about the transfer; (4) transferee agency was never consulted about reason for transferring plaintiff and it was treated as a "done deal." 2. Suspension for failure to appear at work, when plaintiff contends he was seeking leave, was supported by legitimate disciplinary purpose. District court did not abuse discretion by denying Fed. R. Civ. P. 56(f) motion to take addition al depositions (granted in part) and for production of e-mails, where latter was new discovery and plaintiff had already had ten months to complete his work.

Gaujacq v. Electricité de France, S.A., 601 F.3d 565, 108 FEP 1601 (D.C. Cir. 2010). Panel: EDWARDS, Henderson, Williams. Claims on Appeal: 1. Title VII and D.C. law discrimination (sex). 2. Equal Pay Act. 3. Title VII and D.C. law retaliation. Common law claims (not discussed here). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant] . Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. 3. Affirmed [defendant] Grounds: 1. No evidence of gender motive. Plaintiff was replaced in the positions of General Delegate and President of EDFINA in the normal course of work, as her contract expired. She was treated no differently than the persons who had preceded her in the positions of General Delegate and President of EDFINA. If anything, she was favored when company assigned her to serve as a Vice President of EDFINA in an effort to accommodate her desire to stay in Washington, D.C. The company reassigned her to a high level position in France only after her obstructionist behavior made it clear that she would not work cooperatively with male executive.
She was terminated only after she refused transfer to France. 2. Pay disparity between plaintiff and male executive was based on factors other than sex. Male had substantially more management experience, including with the company's Executive Committee between 1995 and 1999. He had been a senior executive for some time before 2000, so his R-1 classification over plaintiff an R-3) was justified. Record indicates that company's strategic goals and business plans with respect to the United States were significantly changed and upgraded at the time when male executive was brought to Washington, D.C. in 2004; he was especially well qualified to assume the new responsibilities that the company had in mind for the General Delegate and President of company. Failure to prove underlying claim meant that executive could not be held for aiding and abetting. 3. No genuine issue of material fact that officials elected to transfer plaintiff to France when her contract expired, in part because she effectively refused to cooperate with male executive, under whom she would have been assigned to work had she remained in Washington, D.C. Gaujacq's contract expired and she had no right to remain in Washington, D.C. Company also did not retaliate against plaintiff when they terminated her after she refused to work in France. Manager's statement that "[y]our career is dead in EDF if you file the claim" was brief, fleeting, and unadorned verbal statement as an act or threat of retaliation.

Bush v. District of Columbia, 595 F.3d 384, 108 FEP 921 (D.C. Cir. 2010). Panel: RANDOLPH, Garland, Edwards [RANDOLPH, concurring]. Claims on Appeal: §§ 1981, 1983 harassment and discrimination (race).Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: In violation of Fed. R. Civ. P. 56(e). plaintiffs failed to set forth evidence of racial intent by the city in response to summary judgment. Although individual officer defendant failed to submit a local rule statement of facts, that was not fatal to his parallel motion for summary judgment, which rested on the absence of evidence by plaintiffs of racial animus. Plaintiffs also violated D.C. Circuit rules by initially not filing a joint appendix, then attempting to "correct" their briefs by re-writing arguments and citing to new material.

Schuler v. Pricewaterhouse Coopers, LLP, 595 F.3d 370, 108 FEP 795 (D.C. Cir. 2010). Panel: GINSBURG, Henderson, Randolph. Claims on Appeal: 1. ADE and D.C. law promotion to partnership. 2. N.Y. state law promotion (age). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Reversed [plaintiff]. Grounds: 1. Lilly Ledbetter Fair Pay Act of 2009 (LLA), Pub. L. No. 111-2, 123 Stat. 5, -- intended in part to supercede the Supreme Court's decision in Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007) -- applies to claims of "discrimination in compensation." Two plaintiffs argued that denial of a partnership was a "compensation decision or other practice" within the scope of the Act, rendering his claims from 1999 and 2000 timely. Panel interprets "other practice" language narrowly, and affirms summary judgment on these ADEA claims on timing grounds: "[I]n employment law the phrase 'discrimination in compensation' means paying different wages or providing different benefits to similarly situated employees, not promoting one employee but not another to a more remunerative position. . . . In context, therefore, we do not understand 'compensation decision or other practice' to refer to the decision to promote one employee but not another to a more remunerative position." The term "other practice" refers, by example, "to giving an employee a poor performance evaluation based upon her sex (or any other unlawful criterion) and then using the evaluation to determine her rate of pay." Summary judgment affirmed on the remaining, timely claims on the ground that the two plaintiff failed to establish that the firm's reasons for not promoting them were pretextual (i.e., economic considerations in one case, insufficiently high partner ratings in another). Existence of mandatory retirement policy not probative of age animus. 2. Plaintiffs' allegation that the firm's discriminatory promotion policy originated from the firm's New York headquarters brings the claim within the scope of New York law. It is enough that a discriminatory act occurred in New York. (Schuler v. PricewaterhouseCoopers, LLP, 514 F.3d 1365, 1378 (D.C. Cir. 2008)). Plaintiffs entitled to the reasonable inference that the discrimination alleged in this case occurred in New York.

Miller v. Hersman, 594 F.3d 8, 108 FEP 691 (D.C. Cir. 2010). Panel: HENDERSON, Rogers, Brown. Claims on Appeal: 1. Title VII (sex) and ADEA promotion. 2. Title VII (sex) and ADEA evaluation. Disposition Below: 1. Summary judgment [defendant]. 2. Dismissal for failure to state a claim, Fed. R. Civ. P. 12(b)(6) [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Reversed [plaintiff]. Grounds: 1. Limitations period of 45 days to seek counseling did not begin to run until employee learned who the successful candidates were. 2. District court erred in holding on the face of the complaint that the employee had not exhausted administrative remedies and that the subject matter was the same as another pending case.

Stewart v. St. Elizabeths Hospital, 589 F.3d 1305, 22 AD Cases 1288 (D.C. Cir. 2010). Panel: KAVANAUGH, Tatel, Randolph. Claims on Appeal: Rehabilitation Act reasonable accommodations. Disposition Below: Summary judgment and judgment as a matter of law [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: No evidence that plaintiff notified employer (prior to October 2002) of her asserted mental disabilities or ever requested a transfer from duties in a maximum-security ward as an accommodation. Nor was the employer on constructive notice; although she exhibited symptoms of stress, she told the employer that it was due to a personal matter. During short period that transpired after she notified hospital of her asserted disability, the panel affirms the district court's decision that -- as a matter of law -- the plaintiff failed to prove that the hospital denied an accommodation. The hospital representative responsible said that he would try to assist plaintiff as soon as she submitted the necessary paperwork, which she never completed.

Czekalski v. LaHood, 589 F.3d 449, 108 FEP 1 (D.C. Cir. 2009). Panel: HENDERSON, Ginsburg, Randolph. Claims on Appeal: Title VII demotion (sex). Disposition Below: Judgment after a jury trial [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: No error in instructing jury on meaning of "adverse employment action," despite mispunctuated sentence that could be read to exclude changes in duties and working conditions from its scope. Presented as a whole in the charge, the instructions were accurate. District court did not err in not giving instruction permitting negative inference from allegedly missing documents. New trial not warranted on "manifest weight of evidence" grounds. Jury could find no adverse action based on the record (e.g., retrained pay grade, position was considered prestigious).

Kersey v. Washington Metropolitan Area Transit Authority, 586 F.3d 13, 22 A.D. Cases 934 (D.C. Cir. 2009). Panel: GARLAND, Henderson, Randolph. Claims on Appeal: Rehabilitation act promotion. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Holding that enforcement of prior settlement agreement that provided that employee would not be placed in job that required driving was legitimate, non-discriminatory reason for enial of promotion. Agency did not impliedly revoke the agreement by allowing plaintiff to take tests and interview for the promotion. Agency was willing to let plaintiff take the promotional tests in anticipation of a modification of the 1990 contract, a modification that never materialized.

Blackmon-Malloy v. United States Capitol Police Bd., 575 F.3d 699, FEP 1473 (D.C. Cir. 2009). Panel: ROGERS, Sentelle, Ginsburg. Claims on Appeal: Congressional accountability Act (CAA) pattern-or-practice (race). Disposition Below: Dismissed for lack of subject-matter jurisdiction, FRCP 12(b)(1) [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Counseling and mediation requirements of CAA § 1408(a) are jurisdictional, hence vicarious exhaustion of requirements by other employees does not apply. Nevertheless, district court erred in holding that employees must physically appear at these activities. While employees did not present the in-person requirement below, argument not forfeited because district court addressed merits of issue in decision. CAA § 1402 (requiring "meetings with the parties") allows employees to be represented by counsel at meetings and does not require in-person appearance. Even if section were deemed ambiguous, regulations adopted by the Police Board failed to require in-person attendance by employees. CAA § 1403 provides for certification of end of counseling/mediation by employing office; district court is deprived of authority under statute to dispute the validity of the written notices, in view of strict time limits for completion of pre-filing process and confidentiality.

Lytes v. D.C. Water and Sewer Auth., 572 F.3d 936, 22 AD Cases 157 (D.C. Cir. 2009). Panel: GINSBURG, Tatel, Brown. Claims on Appeal: ADA reasonable accommodation and termination . Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: 2008 ADAA amendments not retroactive. Congress deliberately set effective date for January 1, 2009, and new sections distinctly rejected prior authoritative judicial interpretation of the ADA. Statute did not indicate that effective date was set for alternative, time-neutral reason (e.g., to allow EEOC to adopt regulations), and was not rendered ambiguous by other section of act. Alos, panel applies presumption against retroactivity. Even assuming that the employee was limited in the major life activities of lifting, bending and working (under pre-amended statute), he failed as a matter of law to establish that he was substantially limited. Employee waived response by describing his disability history in a single paragraph without record support. Functional capacity evaluation (FCE) done in 2003 indicated serious difficulties with using the washroom and tying shoes, but in district court employee (then pro se) disavowed reliance on the report. Medical evaluation revealed adequate lifting (10-20 lbs) and bending ability, outside the demanding standard of Toyota Motors. Employee waived argument about work as MLA.

Taylor v. Solis, 571 F.3d 1313, 106 FEP 1121 (D.C. Cir. 2009). Panel: GINSBURG, Henderson [ROGERS, dissenting]. Claims on Appeal: 1. Title VII harassment (sex). 2. Title VII retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Employer prevails on Faragher/Ellerth defense. Employee did not challenge adequacy of corrective measures. Employee waited some six months to bring complaint, and even though investigation found no harassment, conduct came to an end at that point. Plaintiff's having spoken privately to co-worker months earlier did not meet agency procedure. Delay in reporting was unreasonable, and statement by alleged harasser at the time that "no one would believe" her if she complained and "they would think . . . [she was] the problem" did not establish reasonable basis for fear of retaliation. 2. Five of the six alleged reprisals were not materially adverse (criticized for "negative behaviors," slowing processing of employee's caseload, not recommended for job that in the end was never authorized, lowered evaluation). No evidence that filing complaints caused he to be listed as AWOL and cost her back pay (later reinstated), where employee acknowledged error in checking form for sick leave, and in any even there was 2 and 1/2 month gap between filing complaints and alleged retaliatory action.

Hendricks v. Geithner, 568 F.3d 1008, 106 FEP 843 (D.C. Cir. 2009). Panel: SENTELLE, Ginsburg [BROWN, dissenting in part]. Claims on Appeal: Title VII promotion (race, sex). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Although successful candidate for first promotion has a disciplinary record, there is no evidence that the decision-maker was aware of the details and had been assured that he completed his disciplined and was eligible for promotion. Plaintiff could not show that she was "significantly more qualified" for position where experience and performance appraisals showed that successful candidate was (if anything) more qualified. Comments by office head that there were "too many women" in the office and that women were the "downfall" of the office, the probative value of this evidence was mitigated by fact that the target of these comments was the only woman in the office, so comments may not have been based on gender, and was years old (hence stale). For other promotion, a single-time departure from procedures was not evidence of racial/gender animus.

Douglas v. Preston, 559 F.3d 549, 105 FEP 1323 (D.C. Cir. 2009). Panel: BROWN, Ginsburg [TATEL, dissenting]. Claims on Appeal: Title VII discrimination (race). Disposition Below:  Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Agency’s decision not to nominate employee for discretionary Presidential Rank Award, which is awarded by White House, did not constitute “adverse employment action.” Although actions that affect an employee’s status (e.g., hiring firing, promotion) may be conclusively presumed to be adverse, with other actions concerning benefits the employee must demonstrate that the decision caused an objectively tangible harm. Here, the prospect of the award was too speculative to be objectively tangible.

Potter v. District of Columbia, 558 F.3d 542, 105 FEP 1249 (D.C. Cir. 2009). Panel: ROGERS, Tate [WILLIAMS, concurring]. Claims on Appeal: RFRA challenge to grooming requirements (religion). Disposition Below: Summary judgment for plaintiffs [plaintiff]. Outcome on Appeal:  Affirmed [plaintiff]. Grounds: City failed to present genuine issue about whether positive pressure system for lifesaving equipment would work for bearded fire-fighter. Although public safety is a compelling interest, no-beard policy not narrowly tailored to safe operation of equipment.  City claimed that equipment would not work properly for extended periods, but its witnesses conceded that positive-pressure SCBA. Issue switched to use of negative-pressure equipment, but city conceded safety by failing to contest risk of “overbreathing” (which shotens life of the equipment) in statement of uncontested fact or briefs in district court. City failed to muster scientific articles, safety regulations and manufacturer directions in summary judgment motion.

Jones v. Bernanke, 557 F.3d 670, 105 FEP 1241 (D.C. Cir. 2009). Panel: TATEL, Sentelle, Williams . Claims on Appeal: 1.  Title VII and ADEA discrimination. 2. Title VII and ADEA retaliation (2000 evaluation). 3.   Title VII and ADEA retaliation (2001-3 evaluations). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Reversed [plaintiff]. 3. Reversed [plaintiff]. Grounds: 1.  Employee failed to allege discrimination in complaint, and amendment -- though allowed by district court -- was futile because it was time-barred and did not relate back to retaliation (FRCP15(c)), because it refers to prior 1998 denial of promotion. Agency did not forfeit issue by failing to appeal interlocutory order allowing amendment, or failing to raise it anew in motion for summary judgment (included in answer, raised in opposition to motion to amend complaint, and in reply on summary judgment).  2. Employee’s argument on FRCP56(f)_waived. One-month gap between request for hearing on discrimination and 2000 evaluation.  Employee presented sufficient evidence to reasonably support an inference that decision-makers knew about protected act because the agency at large knew about it.  Each protected act raises its own  claim, so fact that employee took earlier action filing EEO complaint does not diminish inference of temporal proximity to later act.  Employee also presented GIMF on pretext.  Review refers to projects that he was never assigned to or was removed from. 3.  District court erred in analyzing prima facie case after employer presented its legitimate, non-discriminatory reason; case remanded for analysis of discrimination vel non.

Baloch v. Kempthorne, 550 F.3d 1191, 105 FEP 1, 21 A.D. Cases 583 (D.C. Cir. 2008). Panel: KAVANAUGH, Griffith, Williams. Claims on Appeal: 1. Title VII, ADE and Rehabilitation Act discrimination (race, religion). 2. Title VII, ADE and Rehabilitation Act retaliation. 3. Title VII, ADE and Rehabilitation Act harassment (race, religion). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant. 3. Affirmed [defendant]. Grounds: 1. Adding another Water Rights Specialist to unit - restoring unit to prior staffing level - and transferring some duties from plaintiff to new employee not an adverse action. Alternatively, no evidence of pretext for legitimate non-discriminatory reason that adding new specialist restored staff and budget to the office, and filled gap with someone with legal experience. 2. No materially adverse actions in following acts: imposition of sick leave restrictions that did not affect plaintiff's ability to take leave; proposed suspensions not carried out; letters of counseling, reprimand unsatisfactory review that did not affect pay or promotion opportunities; verbal alternations. Alternatively, the above events were supported by record of admitted infractions by plaintiff, including abuse of sick leave, disregard of orders, missing deadlines, unauthorized travel, emailing of grievances. Comparable employee had far fewer infractions and were less significant. 3. No comments or actions shown to motivated by protected status.

Royall v. Nat'l Assoc. of Letter Carriers,  548 F.3d 137, 104 FEP 1490 (D.C. Cir. 2008). Panel: ROGERS, Henderson, Randolph. Claims on Appeal: § 1981 termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee's notice of appeal was timely filed, despite that it was not docketed until after 30 days; electronic filing with district court occurred within the jurisdictional limit (according to docket sheet and credit card invoice) and failure of automated system to pick up notice was not fault of the plaintiff-appellant. On the merits, employer presented a legitimate, non-discriminatory reason for termination (consistent complaints about performance). That white replacement had record of underperforming and was not fired did not demonstrate discrimination, where replacement asked to be moved earlier and had previously experience with the employer. While plaintiff was able to undermine several of the reasons given for supporting his termination based on performance, various other were uncontested and corroborated, and would have been sufficient alone to support the decision. Some arguments made on appeal were forfeited by not be raised below.

Oscarson v. Office of the Senate Sergeant at Arms, 550 F.3d 1, 21 A.D. Cases 589 (D.C. Cir. 2008). Panel: WILLIAMS, Garland, Brown. Claims on Appeal: Congressional Accountability Act disability reasonable accommodation. Disposition Below:Denial of motion to dismiss [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: Interlocutory appeal of denial of motion to dismiss denied on appellate jurisdictional grounds. Agency challenged employee's compliance with Congressional Accountability Act ("CAA") 180-day limit for making request for counseling. Even if requirement related to federal sovereign immunity, and denial of federal sovereign immunity qualified for interlocutory appeal (split in the circuits on this issue), fact-bound character of issue and overlap with merits puts it beyond scope of collateral order doctrine.

Montgomery v. Chao, 546 F.3d 703, 104 FEP 1249 (D.C. Cir. 2008). Panel: GARLAND, Henderson, Randolph. Claims on Appeal: Title VII classification and promotion (race, sex). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: No genuine issue of material fact about discrimination in failure to reclassify/promote in three instances where (1) employee's putative five comparables held different positions and worked in a different branch of the agency, and record did not support alleged fabrication of his job duties and experience; (2) choice of "more qualified applicant" was legitimate reason and amply supported by record; (3) reference to "past history" of employee to ambiguous to support inference of retaliation; (4) for one position, no record that plaintiff made "status application."

Trout v. Sec'y of the Navy, 540 F.3d 442, 104 FEP 225 (D.C. Cir. 2008): Panel: SENTELLE, Ginsburg, Brown. Claims on Appeal: Post-judgment motion for interest under Title VII. Disposition Below: Denied [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Title VII, 42 U.S.C. § 2000e-16(d), which was added under 1991 Act to make federal government liable for pre-judgment interest, did not apply to damages attributable to pre-1991 discrimination, refusing to reverse prior decision in light of Republic of Austria v. Altmann, 541 U.S. 677 (2004). No attorneys fees awardable for post-decretal activity to collect interest that did not result in addition al relief.

Steele v. Schafer, 535 F.3d 689, 103 FEP 1537 (D.C. Cir. 2008): Panel: GARLAND, Griffith, Williams. Claims on Appeal: 1. Title VII harassment (race). 2. Title VII retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Reversed [plaintiff]. Grounds: 1. District court erred in failing to acknowledge that a genuine issue of material fact existed as to the date of employee's contact with an EEO counselor. District court also erred in adopting 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. 2. District court applied a standard of "adverse action" for retaliation claims that is inconsistent with Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006).

Adams v. Rice, 531 F.3d 936, 20 A.D. Cases 1441 (D.C. Cir. 2008). Panel:  TATEL, Kavanaugh [HENDERSON, dissenting]. Claims on Appeal: Rehabilitation Act hiring. Disposition Below: Summary judgment [defendant]]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: . Plaintiff is described as "a candidate for the United States Foreign Service, [who] passed the required entrance examinations and received a medical clearance, only to learn thereafter that she had been diagnosed with stage-one breast cancer." Despite remission State Department determined that she could not be posted overseas, out of concern for return of cancer and the probability that plaintiff would not be able to get adequate medical attention wherever she might be stationed. Although as a cancer survivor, plaintiff was neither actually nor regarded as disabled (State Department knew that the immediate health crisis had passed). record presents a triable issue of fact about whether plaintiff had a record of a disability. Court rejects narrow reading of a "record" as a mere medical file and construes it more broadly as having a history of a disability. Court holds that "major life activity" in discriminating case need not be one that potentially affects work performance unless employee seeks a workplace accommodation. The temporary inability Adams suffered in caring for herself during recovery was not considered a "major life activity." Court holds that significant limitations in "sexual relations" is cognizable disability. Because the employer did not contest plaintiff's self-description of limitations on her intimate life, court holds that the summary judgment record on this point goes to the plaintiff. Court rejects agency's argument that it could not be held liable when the plaintiff did not forewarn it of the precise nature of her impairment. Court also holds that plaintiff's argument did not fail on account of a failure to administratively exhaust it (as federal employees are required to do), i.e., including the major life activity in her charge. It is not necessary that the employer understand the precise impact that a known disability has on an employee's life to sustain a claim of disability discrimination.

Desmond v. Mukasey, 530 F.3d 944, 20 A.D. Cases 1291 (D.C. Cir. 2008). Panel: TATEL, Ginsburg, Randolph. Claims on Appeal: 1. Rehabilitation Act termination. 2. Rehabilitation Act retaliation. Disposition Below:  1. Summary judgment [defendant]. 2. Judgment after a jury trial [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Affirmed [defendant]. Grounds:  1. Sleeping held to be a major life activity. Genuine issue of material fact whether plaintiff (FBI agent trainee) was substantially limited in sleeping due to post-traumatic stress disorder . Although precise benchmark for comparison to population is unclear, where peoples' need for sleep varies widely, plaintiff would have met any benchmark, based on his personal testimony that PTSD limited him to two to four hours of sleep a night; jury could find this was significantly limiting. Though lack of sleep supposedly did not affect work performance or waking life, employee need not prove such effects as an element of the claim. In any event, record showed that lack of sleep did impair ability to socialize at work and emotional state. Limitation on sleep not limited to situations where he was posted away from his home in Ohio. Employee's "regarded as" claim fails because at most agency considered employee unqualified for a Special Agent job or unable to interact with others outside of the academy. Genuine issue of material fact on issue of pretext, where agency previously rated the plaintiff highly and began to treat him different immediately in the wake of learning about the PTSD diagnosis. Agency doctor also submitted report suggesting that psychological impairment may affect his ability to perform as a special agent. 2. Admission of lengthy investigative report about plaintiff not error under FRE403 where judge carefully admitted it with instruction to jury that it be considered only as evidence of the information before the decision-maker, rather than for the truth of the matter asserted, and denied parties leave to bolster or attack anything in the report. Any error in jury charge (failure to enumerate five possible materially adverse actions) harmless because jury found no liability for retaliation on threshold instruction.

Venetian Casino Resort, LLC v. EEOC, 530 F.3d 925, 103 FEP 1025 (D.C. Cir. 2008). Panel: GINSBURG, Rogers, Griffin. Claims on Appeal: APaction to enjoin provision of EEOC Compliance Manual. Disposition Below:  Summary judgment [defendant]. Outcome on Appeal: Reversed and remanded for entry of injunction [plaintiff]. Grounds: EEOC's Compliance Manual policy (Section 83) of permitting the disclosure of potentially sensitive employer information to charging parties without prior notice to the respondent was arbitrary and capricious under the APA, where it contradicted the agency's own, more restrictive regulations enacted in compliance with FOIA.

Ginger v. District of Colombia, 527 F.3d 1340, 103 FEP 801 (D.C. Cir. 2008). Panel: GINSBURG, Sentelle, Edwards. Claims on Appeal: 1. Title VII reorganization (reverse race). 2. Title VII retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Reorganization of canine unit was materially adverse, to the extent that it cost officers night-work pay, severely affected sleep schedules and made it more difficult to do part-time work during the ay. District court erred in holding that there was no prima facie case because every officer in the unit was affected equally by the reorganization (plaintiffs need not identify similarly situated person who was treated differently), or that affirmative action to improve "race relations" -- an admitted factor in some of the reorganization -- was a valid reason for moving white officers to a different shift. Summary judgment affirmed on alternative ground that employee chose to pursue their claim as single-motive, determining factor case under 42 U.S.C. § 2000e-2(a) instead of "mixed-motive," motivating factor case under 42 U.S.C. § 2000e-2(m). Changing composition of squads might have been racially motivated, but switching guards from permanent night shifts to rotating daytime shift was not. District presented several legitimate, non-discriminatory reasons for rotating shifts (problem of dog bite incidents concentrated in one unit, adding a new sergeant, problem of alienation of night shift unit). No evidence that these reasons were pretextual.2. Need to shift two officers to plug shortfall in shift was not pretext for retaliation.

Larsen v. Winter, 525 F.3d 1, 103 FEP 180 (D.C. Cir. Apr. 29, 2008). Panel: TATEL, Randolph [WILLIAMS, dissenting]. Claims on Appeal: Free Exercise hiring. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Remanded with instruction to dismiss as moot [defendant]. Grounds: Challenge to alleged quota system of hiring Navy chaplains moot. Claim for credit toward pay and benefits is a request for monetary relief that is unripe because they were never hired. Equitable relief is moot because alleged quota system was ended in 2001 and there is no indication that Navy will reinstate it.

Brady v. Office of the Sergeant at Arms, 520 F.3d 490, 102 FEP 1815 (D.C. Cir. 2008). Panel: KAVANAUGH, Ginsburg, Edwards. Claims on Appeal: Congressional Accountability Act demotion (race). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: District court erred in considering prima facie case after employer already proffered its legitimate, non-discriminatory reason for disciplinary demotion (that employee grabbed his crotch in front of witnesses). After the proffer, the only issue ought to be whether the record as a whole could persuade a reasonable jury that the reason given is not a real reason and that the employer discriminated. Summary judgment affirmed on alternative ground that employer did investigation and had good faith reasons to believe that he had committed sexual harassment. Denying the harassment or the reasonableness of the demotion does not make discrimination more or less likely.

Ikossi v. Dep't of the Navy, 516 F.3d 1037, 102 FEP 1441 (D.C. Cir. 2008). Panel: ROGERS, Ginsburg, Brown. Claims on Appeal: 1. Title VII pre-termination discrimination claims (sex, national origin). 2. Title VII termination (sex, national origin). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Reversed [plaintiff]. Grounds: 1. District court erred under 5 U.S.C. § 7702(e)(1) in dismissing non-discrimination mixed case for lack of subject-matter jurisdiction because there was not a final decision by the MSPB, following Sixth and Eleventh Circuit. Pre-termination claims dismissed on alternative grounds under 42 U.S.C. § 2000e-16(c) that claims were neither appealed to EEOC nor included in civil action within 90 days of EEO dismissal. 2. District court abused discretion in granting summary judgment while denying Fed. R. Civ. P. 56(f), where the record of the one-day hearing before the ALJ which no consider all claims presented by employee was insufficient basis to resolve motion.

Schuler v. Pricewaterhouse Coopers, 514 F.3d 1365, 102 FEP 1080 (D.C. Cir. 2008). Panel: TATEL ,Rogers Kavanaugh. Claim on Appeal: ADEA pattern-or-practice promotion collective action. Disposition Below: Dismissal for failure to state a claim, Fed. R. Civ. P. 12(b)(6) [defendant]. Outcome on Appeal: Reversed [plaintiff]. District court misapprehended the complaint as two discrete actions (i.e, denials of promotions on July 1, 2004 and July 1, 2005) rather than a single pattern-or-practice allegation. Plaintiff did satisfy obligation under 29 U.S.C. § 633(b) to cross-file his charge with the appropriate state or local agency. First, under the worksharing agreement between D.C. and the EEOC, physical cross-filing of the charge with D.C. was unnecessary. Filing of the charge with the EEOC, even if in the New York district office, was enough for the charge to be deemed filed under the worksharing agreement with the D.C. Office of Human Rights (which waived the physical filing of the charge). Company argued that the worksharing agreement covered only filings in the local district office in the same jurisdiction. The panel held instead that the agreement covered the entire EEOC, i.e., 29 C.F.R. § 1626.10(c), under a worksharing agreement . . . [c]harges received by one agency under the agreement shall be deemed received by the other agency." Charging party had further protected itself by expressly requesting cross-filing with D.C. (as well as New York). Charging party cannot be held responsible for the EEOC's failure to forward the charge as he explicitly requested. Worksharing agreement not limited only to Title VII claims, based on its plain language and on the liberal construction of charge-filing requirement. Second, charge-filing requirement was also met by the filing in New York. N.Y. Exec. Law § 296 applied to this action, even though employee was in D.C., where employer was headquartered in NY. Employee was relieved from filing serial charges after the first alleging denial of promotion, where the first charge and complaint allege a pattern-or-practice, deeming such subsequent charges to be of no practical significance: Employee seeks damages flowing from the first application of employer's allegedly discriminatory policy through to the present.

Wiley v. Glassman, 511 F.3d 151, 102 FEP 368 (D.C. Cir. 2007). Panel: Per Curiam [Brown, Griffith, Edwards]. Claim on Appeal: 1. Title VII failure to promote (race and sex) and retaliation. 2. Title VII terms and conditions (race and sex) and retaliation. 3. Title VII other retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. 3. Affirmed [defendant]. Grounds: 1. Employee claimed that she should have been reclassified from GS12 to GS13 based on accretion of duty. District court erred in holding that employee was required, at prima facie stage, to prove that anyone similarly situated was promoted when she was not. Summary judgment affirmed on alternative ground that there was no evidence of what her GS12 duties had been. 2. Employee did not rebut employer's legitimate reason for denying her rotation into managing editor position (that the job required more time than she had, in light of her union duties). 3. Denial of retroactive application of leave policy supported by legitimate reason that employee was not entitled to leave under circumstances demanded by employee (to attend witness depositions in pending Title VII case). District court erred in striking claims for retaliatory harassment and reduced airtime, but summary judgment affirmed on alternative grounds that harassment had be found not severe or pervasive and reduced airtime on radio (by four minutes) was not materially adverse.

Segar v. Mukasey, 508 F.3d 16, 102 FEP 65 (D.C. Cir. 2007). Panel: GARLAND, Kavanaugh, Silberman . Claim on Appeal: Title VII consent decree. Disposition Below: Injunction entered [plaintiff]. Outcome on Appeal: Vacated with instructions [plaintiff]. Grounds: District court erred in holding that there was no meeting of the mind in 2002 on stipulation concerning procedures to promote DEA special agents to positions in Senior Executive Service. Court misconstrued footnote in agreement that reserved authority to administrator to select candidates; footnote did not grant Administrator carte blanche to ignore procedures approved by Court.

Dunning v. Quander, 508 F.3d 8, 102 FEP 14 (D.C. Cir. 2007). Panel: Per Curiam (Sentelle, Tatel, Williams). Claim on Appeal: ADEA promotion and retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: District court did not abuse discretion in denying the employee's Rule 56(f) motion, where employee failed to articulate basis for taking depositions of summary judgment of affiants or o challenge their veracity. No discovery would have changed fact that age-37 limit for position was authorized by law (5 U.S.C. § 3307(d)).

Greer v. Paulson, 505 F.3d 1306, 101 FEP 1569 (D.C. Cir. 2007). Panel: ROGERS, Sentelle, Griffith. Claim on Appeal: Title VII harassment (race). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee's extended absence from the worksite does not necessarily break the chain of activity that might constitute a hostile work environment, citing case from other circuits. But in this case, the employee's history when she attempted to return to work from of leave of absence (to work in the White House) proved as a matter of law that intervening events broke the chain of causation. Employee refused to report back to the agency out of concern that the harassment would continue. A racially hostile comment attributed to one manager was found to be inadmissible hearsay (it was filtered through a union representative who denied actually hearing the remark directly), while the balance of activity concerned a new worksite unrelated to the one where the employee originally suffered harassment: "there are . . . two sets of intervening events - one by Greer's employer, in assigning her to a new supervisor and new branch as part of a reorganization of her entire division, and one by Greer, in refusing to return to work."

Patterson v. Johnson, 505 F.3d 1296, 101 FEP 1597 (D.C. Cir. 2007). Panel: WILLIAMS, Randolph, Brown. Claim on Appeal: 1. Title VII discrimination (race). 2. Title VII retaliation . Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]2. Affirmed [defendant]. Grounds: 1. No adverse employment action where plaintiff alleged minor intrusions in management of staff (vetoed hiring of one clerical worker, transferred two others, hired another interviewee over objection) and failure to appoint as acting director for one day. 2. Transfer to non-supervisory duties, though it was an adverse action and plaintiff otherwise satisfied prima facie case, held not retaliatory as a matter of law where employer demonstrated that employee was transferred away to prevent bickering with another agency employee and employee had no entitlement to be transferred into another position of his choice.

Carter v. WMATA, 503 F.3d 143, 101 FEP 1226 (D.C. Cir. 2007). Panel: BROWN, Henderson, Randolph. Claims of Appeal: Title VII harassment. Disposition Below: Dismissed for failure to state a claim, Fed. R. Civ. P. 12(b)(6) [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: District court did not abuse discretion in declining to consider equitable tolling argument mad in motion to reconsider. Because unlawful practice allegedly occurred on July 6, 2004, her charge filed January 19, 2005 was timely, in spite of error entering date on charge form as "4-6-04."

Jackson v. Gonzales, 496 F.3d 703, 101 FEP 471 (D.C. Cir. 2007). Panel: KAVANAUGH, Henderson [ROGERS, dissenting]. Claim on Appeal: Title VII promotion (race). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Although employee met the prima facie requirements, agency contended that the successful candidate had greater experience in one particular skill area (the Bureau's main data management tool, known as the Key Indicators Strategic System). Employee did not rebut this explanation as pretextual by (1) evidence that he had comparable credentials to the successful candidate (comparative evidence is probative only if the plaintiff is more qualified); (2) evidence that experience Key Indicators system was not listed in job description as a qualification (it was implicated by other job criteria interviewers were not required to stick exactly to paper description of job); and (3) timing of explanation (Board had no prior opportunity to explain decision).

Weber v. Battista, 494 F.3d 179, 100 FEP 1821 (D.C. Cir. 2007). Panel: GINSBURG, Sentelle, Edwards . Claims on Appeal: 1. Title VII promotion (sex, national origin). 2. Title VII retaliation. 3. Title VII discrimination (sex, national origin). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Reversed [plaintiff]. 3. Affirmed [defendant]. Grounds: 1. Employee had exhausted administrative prerequisites for discriminatory nonselection for position of Deputy Executive Secretary, because under 29 U.S.C. § 1614.106(d), such claim could have reasonably been expected to grow out of earlier complaint of nonselection as Acting Deputy Executive Secretary, and Office of Equal Employment Opportunity had treated complaint as encompassing both claims. 2. Employee presented genuine issue of material fact whether denial of overall ratings in "fully successful" to "outstanding" range might have dissuaded reasonable employee from complaining about discrimination, where as a consequence the employee became ineligible for performance award. Although awards were nominally optional with agency, board had previously made awards to plaintiff until she complained of discrimination. 3. Employee failed to raise genuine issue of material fact rebutting legitimate, non-discriminatory explanations for withdrawal of authority to make direct assignments to support staff, alleged failure to include in meetings, direct access to board members, removal of responsibility to handle unfair labor practice cases presented on a stipulated record, removal from monitoring super-panel cases and preparation of case status reports.

Vickers v. Powell, 493 F.3d 186, 100 FEP 1828 (D.C. Cir. 2007). Panel: GRIFFITH, Rogers, Tatel. Claims on Appeal: 1. Title VII retaliation and termination (sex and race). 2. Title VII harassment (sex and race). MSPB appeal (not discussed here). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Reversed [plaintiff]. Grounds: 1. Assuming that employee made out prima facie case, employer proffered legitimate, non-discriminatory reason for discharge (failure to complete medical examination for fitness for duty in law enforcement after diagnosis of depression, failure to sign release forms, preventing an individual medical examination, and failure to follow orders). Assistant Inspector for Investigations who made termination decision was unaware of other agent's alleged discriminatory/retaliatory bias. Although panel remanded same reasons for reconsideration by MSPB, it concludes that even if termination was unfair procedurally, that does not tend to prove that the violation was a Title VII violation. Employee waived argument that hostile work environment was further evidence of discriminatory intent. No evidence that employee received unfairly low performance appraisal.2. Employee presented genuine issue of material fact regarding timing and whether harassment was severe or pervasive. District court erred by excluding six prior incidents of harassment by a predecessor supervisor. The kinds of harassment, and the agency's failure to correct it, are common issues. Change in management not conclusive, because nothing in record demonstrated that routine change in supervisors was intended to correct hostile environment; record showed, if anything, that the harassment intensified. District court also erred in holding that events within the 45-day window (for reporting to an EEO official) had to manifest severe/pervasive standing alone before considering the prior events.

Murphy v. IRS, 493 F.3d 170 (D.C. Cir. 2007). Panel: GINSBURG, Rogers, Brown. Claims on Appeal: Action for refund of federal taxes. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: IRS had constitutional authority conferred by Congress under Art. I, §§ 8 and 9, to tax Title VII compensatory award that was not exempted by § 104(a)(2) (damages received "on account of personal physical injuries or physical sickness").

Fogg v. Gonzales, 492 F.3d 447, 100 FEP 1601 (D.C. Cir. 2007). Panel: GINSBURG, Garland [HENDERSON, concurring]. Claims on Appeal: Title VII harassment and termination (race). Disposition Below: Order of equitable relief on remand [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: Panel rejects argument by government that 42 U.S.C. § 2000e-2(m) provides only standard for liability under Title VII. Government claimed that it was erroneously denied a "same action" defense because district court held that case proceeded under single-motive theory and that "same action" defense was not available. Nothing on the face of the 1991 act suggests a case may no longer be brought under 42 U.S.C. § 2000e-2(a) and implied repeals are disfavored. Government could not after the jury had returned its verdict and agency had filed a post-trial motion for judgment as a matter of law in which it treated the case as one involving a single motive - switch positions and argue on remand the case really involved mixed motives. Award of back pay to the date of final judgment, and denial of finding that employee became disabled or would have retired earlier, was not an abuse of discretion. District court did not err in finding with respect to mitigation defense that because his employment record showed agency had dismissed him for insubordination, "any efforts to find a comparable law enforcement position would have been futile." District court erred as a matter of law, though, by awarding 14% tax gross-up, which was contrary to circuit precedent. District court did not err in denying front pay based on "unclean hands" (in testimony before the Congressional Black Caucus and on his website, he had misrepresented himself as a deputy U.S. Marshal after he had been discharged).

Koch v. Cox, 489 F.3d 384, 100 FRP 1402 (D.C. Cir. 2007). Panel: GINSBURG, Brown, Kavanaugh. Claims on Appeal: ADA discrimination, retaliation and reasonable accommodation. Disposition Below: Motion to quash subpoena denied [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Employee did not impliedly or expressly waive privilege over documents in custody of psychotherapist and psychopharmacologist by mentioning depression, stress, humiliation and loss of enjoyment of life as elements of injury, provided that he does not seek recompense for such injuries. Implied waiver only comes when the employee relies on such communications for claim or releases them selectively. District court abused its discretion in holding that the employee expressly waived the privilege. Although the employee initially signed releases of his medical records to the SEC, each release reserved Koch's right to "revoke this Authorization at any time, [in writing] ... except to the extent that action has already been taken in reliance [upon] this Authorization," tracking language issued by the U.S. Department of Health and Human Services pursuant to the Health Insurance Portability and Accountability Act (HIPAA), which permit revocation "except to the extent that ... (i) The covered entity has taken action in reliance thereon," 45 C.F.R. § 164.508(b)(5)(I), and which define a covered entity as, among others, a "health care provider," id. § 160.102(a). The appeals panel held that the employee validly revoked the release, and the SEC was not a "covered entity" that could claim reliance.

King v. Jackson, 487 F.3d 970, 100 FEP 1267 (D.C. Cir. 2007). Panel: TATEL, Sentelle, Henderson . Claims on Appeal: Title VII termination (pregnancy) . Disposition Below: Fed. R. Civ. P. 12(b)(6) dismissal for failure to state a claim [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Opposition to agency's decision not to renew an affirmative action plan not a protected activity. Failure to renew does not fall within the terms of 42 U.S.C. § 2000e-2(a)(1) or the federal employee counterpart, 42 U.S.C. § 2000e-16(b)(1).

Harris v. Gonzales, 488 F.3d 442, 100 FEP 1071 (D.C. Cir. 2007). Panel: TATEL, Garland, Brown . Claim on Appeal: Title VII retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Employee of government contractor presented genuine issue of material fact whether agency ought to have granted her a 45-day extension of time (as precondition of suit) to talk to an EEO counselor under 29 C.F.R. § 1614.105(a)(2). Employee does not have to establish grounds for equitable tolling; test was whether agency notification was "reasonably geared" to inform her of time requirement. This case presented disputed issue where notice posters were not part of the record, where posters may not have been directed to independent contractors working for agency, where agency did not show likelihood that employee would have seen the posters in the break room, and where the affidavits submitted by agency concerned the wrong time-period and were based on "information and belief."

Greenhill v. Spellings, 482 F.3d 569, 100 FEP 532 (D.C. Cir. 2007) . Panel: WILLIAMS, Garland, Brown. Claim on Appeal: Title VII retaliation. Disposition Below: Dismissal for lack of subject-matter jurisdiction [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Because employee sought to recover in excess of $10,000 in contract damages for breach of settlement agreement (along with equitable relief), jurisdiction under the Tucker Act (28 U.S.C. §§ 1346(a), 1491(a)(1)) resided in the Court of Federal Claims. Though the underlying dispute arose on an EEO claim, the court holds that the face of the complaint stated a contractual claim for damages. Complaint did not present retaliation claim on its face, and glancing mention of discrimination in 100-page pro se complaint and exhibits insufficient basis for pleading such claim. Court notes that Court of Federal Claims would have no jurisdiction over substantive Title VII claim, but breach-of-settlement claim may go to that court even if underlying basis of settlement was Title VII. Tucker Act also allows for equitable relief on "clean-up" basis if that is appropriate.

Woodruff v. Peters, 482 F.3d 521, 19 A.D. Cases 164 (D.C. Cir. 2007) . Panel: BROWN, Henderson, Rogers. Claims on Appeal: 1. Rehabilitation Act reasonable accommodation. 2. Rehabilitation Act retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Affirmed [defendant]. Grounds: 1. Agency failed to meet burden of proof on 42 U.S.C. § 2000e-16(c) that employee filed complaint more than 90 days after receipt of right-to-sue letter. Employee did not waive argument regarding "adverse employment actions" and "qualified individual" in district court, but agency did waive challenge to employee's standing as disabled. Triable issue of fact regarding agency's decision to withdraw an accommodation (a limited work schedule and periodic breaks). The FAA Telecommuting Handbook anticipates "[e]mployees may telecommute . . . as frequently as five days a week." The FA allowed another employee in employee's division to lead a team in Washington, D.C., while working in Florida. Team to which employee was assigned was described as "mostly . . . self-directed," suggesting that employee did not have to be physically present in the office. Indeed, both supervisors allowed Woodruff to work with the proposed accommodations for months, casting doubt on the suggestion that the accommodations would impose undue hardship on the FAA, or that even with such accommodations Woodruff would be unable to perform all the essential functions of his job. 2. Although employee engaged in protected activity (filing EEOC complaint) and withdrawing supervisory authority and revocation of accommodations that employee previously enjoyed was an adverse action, employee did not present genuine issue of material fact on pretext because (1) employee simply disputed characterization of his past work performance; (2) employee could not dispute that supervisor always needed to be physically present; (3) attempts to enter into telecommuting agreements with agency were non-responsive.

Mayers v. Laborers' Health & Safety Fund of North America, 478 F.3d 364, 18 AD Cases 1798 (D.C. Cir. 2007). Panel: Per Curiam (Ginsburg, Sentelle, Tatel). Claims on Appeal: 1. ADA discrimination. 2. ADA retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Because employee failed to allege worksharing agreement (29 C.F.R. § 1601.13(a)(4)(ii), employee only permitted 180 (as opposed to 300) day limitations period for filing charge. Failure to provide tools, denial of transfer or light duty and other alleged acts of discrimination were discrete events and could not partake of continuing violations theory under Morgan . 2. Eight- to nine-month gap between EEO complaint and alleged adverse action (being forced to complete brochure project on crash basis) insufficient to infer retaliation. Constructive discharge claim time-barred because no act occurred within 180 day period.

Czekalski v. Peters, 475 F.3d 360, 99 FEP 1121 (D.C. Cir. 2007). Panel: GARLAND, Rogers, Silberman. Claim on Appeal: Title VII transfer (sex). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: District court erred in holding, under Title VII, that a federal-sector lateral transfer/reassignment could not be an "adverse action" as a matter of law. Though the change in assignment had no effect on compensation, plaintiff lost control over staff of 260 employees, 700 contract employees, over 50 separate programs, and a budget of $400 million; she was dropped down to fewer than ten employees, one program and little or no budget. Change also arguably moved her down the agency hierarchy. An employee, to make out her prima facie case, need not present evidence that a similarly situated employee outside the protected class was treated differently. Employee could pursue a different method of proving prima facie case by showing reassignment was not attributable to unavailability of work or lack of objective qualifications. Employee presented genuine issue of material fact regarding pretext, where she rebutted each of four reasons given in support of agency's contention that her performance was inadequate. Report that employee submitted in support of pretext admissible as public report (FRE803(8)) or party admission (FRE801(d)(2)). Employee also had evidence that male supervisor was considered sex discriminatory (by male co-workers), gave preference to men or forgave slippage in their performance and prone to sexist statements ("you don't have to worry your head over that"). Rejects same-actor inference in light of entire record.

Colbert v. Potter, 471 F.3d 158, 99 FEP 690, 18 A.D. Cases 1409 (D.C. Cir. 2006). Panel: EDWARDS, Williams, [SENTELLE, concurring]. Claims on Appeal: Title VII (race, sex), ADE and Rehabilitation Act discrimination and retaliation . Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: No genuine issue of material fact regarding when employee's counsel received notice of Final Agency Decision, and that lawsuit was filed beyond 90-day limitation period, per 29 C.F.R. § 1614.407(a) and 42 U.S.C. § 2000e-16(c). Although employing agency did not submit entire Domestic Return Receipt date-stamped with counsel's signature to district court, court of appeals had discretion to allow agency to supplement record on appeal (Fed. R. App. P. 10(e)(2)(C)) with entire original document.

Price v. Bernanke, 470 F.3d 384, 99 FEP 687 (D.C. Cir. 2006). Panel: WILLIAMS, Garland, Brown. Claims on Appeal: ADEA retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee waited ten months to file his lawsuit after receiving notice of final agency decision. Under Title VII, the 90-day period is expressly provided by the statute, and while the ADEA lacks a limitations provision applicable to federal employees, by regulation the EEOC imposes a 90-day period as well (29 C.F.R. § 1614.407(c)). Although the employee pointed to a possible six-year period under 28 U.S.C. § 2401 (non-tort civil claims against the U.S.); the four-year period under the catch-all, 28 U.S.C. § 1658; and a two-year limitations period of the FLSA, 29 U.S.C. § 255, court affirms application of 90-day period (creating a split with the Ninth Circuit (which, prior to the 1991 Civil Rights Act, adopted the six-year period in Lubniewski v. Lehman , 891 F.2d 216, 221 (9th Cir. 1989)).

Velikonja v. Gonzales, 466 F.3d 122, 99 FEP 195 (D.C. Cir. 2006) . Panel: Per curiam [Tatel, Brown, Edwards]. Claims on Appeal: Title VII retaliation. Privacy Act and federal constitutional claims (not discussed here). Disposition Below: Failure to state a claim [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Prospect that FBI investigation would interfere with employee's opportunity for promotions stated a claim under Title VII.

Fields v. Office of Eddie Bernice Johnson, 459 F.3d 1, 98 FEP 993 (D.C. Cir. 2006) . Panel: RANDOLPH, Ginsburg, Henderson, Tatel [TATEL, concurring] [ROGERS, concurring in part and concurring in the judgment] [BROWN, Sentelle, Griffith, concurring in the judgment] . Claims on Appeal: Title VII, ADA discrimination (two plaintiffs) . Disposition Below: Dismissal denied under Fed. R. Civ. P. 12(b)(1) [plaintiffs]. Outcome on Appeal: Affirmed [plaintiffs]. Grounds: Under the Congressional Accountability Act of 1995 ("CAA"), congressional employing office of two members not immune from discrimination suits by staff employees under the Speech and Debate Clause solely because the employees duties were allegedly "directly related to the due functioning of the legislative process" (overruling Browning v. Clerk, U.S. House of Representatives, 789 F.2d 923 (D.C. Cir. 1986)). Instead, the relevant inquiry is whether adverse action was taken against the employee because of protected legislative activity (such as speech or debate on the floor, proposing and voting legislation, publishing legislative reports, investigative activities and participating in hearings). A Member's motivation may be immune to discovery under an evidentiary application of the Speech and Debate Clause; such a claim of testimonial immunity may be raised by way of affidavit after the pleading stage.

Barnette v. Chertoff, 453 F.3d 513, 98 FEP 609 (D.C. Cir. 2006). Panel: TATEL, Rogers, Brown. Claims on Appeal: ADE and Title VII transfer (race) . Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Although employee made out prima facie case for failure to transfer, she failed to rebut agency's legitimate non-discriminatory reasons (1) preference to consider internal applicants seeking promotion over lateral transfers, and (2) successful applicant had greater operations experience. Although employee presented a genuine issue of material fact about the existence of a preference for internal promotes, she fails to rebut second reason. Her qualifications were not so clearly superior as to support inference of pretext, where successful applicant had grade level, operations experience and supervisory duties to qualify her for a position. Fact that (1) position was downgraded during application process and (2) successful candidate was able to use a different form that supposedly enhanced her qualifications not shown to be a ruse to tip process in younger, white candidate's favor.

Taylor v. Rice, 451 F.3d 898, 18 AD Cases 1 (D.C. Cir. 2006). Panel: RANDOLPH, Sentelle, Henderson. Claims on Appeal : Rehabilitation ACt hiring. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds : Applicant presented genuine issue of material fact about whether State Department's policy of refusing to hire employees into foreign service who test positive for HIV violated Rehabilitation Act. Court reverses summary judgment on defenses of direct threat and undue burden. Court notes circuit split on who bears burden of proof on direct threat, but concludes that it is unnecessary to resolve the issue on the appeal. Although it is an "essential function" of a Foreign Service Officer to be available for service worldwide, district court erred in concluding that HIV-positive candidate would be precluded from service in 68% of overseas posts. Foreign service statutes and regulations prescribe that a candidate must be able to serve in a "wide variety" of posts, not 100% of them. Agency did historically provide Class 2 clearances to persons with asthmamd record showed that 15-16% of incumbent force had medical restrictions that preventing them from serving anywhere in the world. Agency could have granted accommodation of (1) Class 2 clearance, or (2) allowing him to use allotted leave time to access routine medical care. Disputed issue over "essential function" also pertains to undue burden defense. Genuine issue of material fact whether allotted leave time was sufficient for medical monitoring and whether agency routinely allows and pays for travel for medical care of this sort. Alternative argument that employee's pulmonary condition rendered him not qualified also presented genuine issue of material fact (e.g., severity of his condition, necessity that he be available for worldwide service, whether reliance on this condition is a pretext for discrimination based on the employee's HIV-positive status).

Worth v. Jackson, 451 F.3d 854, 98 FEP 560 (D.C. Cir. 2006). Panel: TATEL, Rogers, Brown. Claims on Appeal: Title VII promotion [reverse race/sex]. Disposition Below: Dismissed for lack of subject-matter jurisdiction [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee had standing to challenge written affirmative action plan to seek prospective relief, under rule in Adarand Contractors permitting facial challenge to race-conscious set-aside program. The relevant factor was whether agency is sufficiently committed to a particular race conscious police that the non-minority employee will face a career impediment. Nevertheless employee lacked standing to pursue allegation of unwritten "policies and practices" that de facto discriminate, because likelihood that it will affect plaintiff in the future is speculative. On mootness, written policy was already superseded and district court properly found that agency would not renew old policy. Challenge to unwritten policy also not ripe, because there was no allegation that de facto policy has affected employee's opportunities.

Mastro v. PEPCO, 447 F.3d 843, 98 FEP 193 (D.C. Cir. 2006) . Panel: BROWN, Ginsburg, Rogers . Claims on Appeal: Rehabilitation Act claim. FECA claim (not discussed here). Disposition Below: Motion to dismiss denied [plaintiff]. Outcome on Appeal: Reversed [defendant]. Grounds: Plaintiff manager turned in black probationary employee who supposedly failed to appear for work because he was in jail, but misrepresented reason as vacation time; employer concluded, after investigation, that black employee had been honest and not misleading about his reasons, and that white manager was not telling the truth. Manager was then terminated. In setting forth "background circumstances" to support prima facie case of discrimination against white manager, employee could rely on (1) recently-expired consent decree which called for more promotions of blacks; and (2) record of reluctance by management to discipline black employees for fear of creating controversy or "stir[ring] up the pot," and in one case avowedly refusing to discipline an African-American (who approached the plaintiff in a physically threatening manner) supposedly "because [the employee] is black." Plaintiff also met balance of prima facie case by showing that (1) he had a good record prior to termination, meeting the employer's reasonable expectations, and (2) he was replaced in his duties by interim appointees. Employer could not bootstrap its reason for termination of plaintiff (i.e. that an investigation raised a credibility issues about the employee's account of African-American employee's failure to appear at work) to defeat employee's showing that he met employer's reasonable expectations. Manager also rebutted explanation for termination by showing that alleged investigation of his untruthfulness was unreliable and unfair, lacked systematic assessments of credibility or motive, and may have been itself have been tainted by racial discrimination.

Spinelli v. Goss, 446 F.3d 159 (D.C. Cir. 2006). Panel: RANDOLPH, Tatel, Williams. Claims on Appeal: Title VII termination (race, reverse discrimination). Defamation claim (not discussed here) . Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds : Employee failed to exhaust administrative remedies. Court refuses to interpolate a "futility" exception into the exhaustion rules.

In re James, 444 F.3d 643, 97 FEP 1395 (D.C. Cir. 2006). Panel: TATEL, Henderson, Silberman. Claims on Appeal: Title VII discrimination (race and sex). Disposition Below: Class allegations dismissed, Fed. R. Civ. P. 12(b)(6) [defendant]. Outcome on Appeal: Dismissed [defendant]. Grounds: Employee could not appeal, through Fed. R. Civ. P. 23(f), district court's dismissal of class allegations on grounds of timing (failure to file action within 90 days of letter dismissing administrative action). Appeal taken not from denial of class certification, but of employee's alleged failure to exhaust administrative remedies under Title VII. Issue did not go to court's jurisdiction.

Gasser v. District of Columbia, 442 F.3d 758, 17 A.D. Cases 1349 (D.C. Cir. 2006). Panel: RANDOLPH, Ginsburg, Edwards. Claims on Appeal: ADA failure to reinstate. Disposition Below: Judgment after a jury trial ($34,096 compensatory damages; $64,179 back pay, $157,397 attorney fees) [plaintiff]. Outcome on Appeal: Reversed [defendant]. Grounds: Employee's testimony failed as a matter of law to establish that perceived impairment (mesenteric vein thrombosis) was seen by employer to substantially limit any major life activity. Because the perceived impairment was employee's risk of exposure to trauma, and expert testimony instead concerned access to jobs involving heavy physical labor, expert's evidence was not probative. Employee also failed to present evidence justifying inference that the driving limitation was substantial.

Chappell-Johnson v. Powell , 440 F.3d 484, 97 FEP 1137 (D.C. Cir. 2006). Panel : TATEL, Sentelle, Henderson. Claim on Appeal: Title VII/ADEA promotion (race). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds : District court erred in holding that employee, to satisfy prima facie case, had to prove that positions she sought was filled by someone outside of the protected group. Other evidence presented by employee by way of declaration established the inference of discrimination necessary to trigger the agency's burden to produce legitimate, non-discriminatory explanation (e.g. that agency allowed other younger, non-minority candidates an opportunity to apply for promotion). District court erred as a matter of law not granting employee relief under Fed. R. Civ. P. 56(f), where summary judgment was filed at the pleadings stage.

Rochon v. Gonzales, 438 F.3d 1211, 97 FEP 944 (D.C. Cir. 2006). Panel: GINSBURG, Tatel, Edwards. Claim on Appeal: Title VII retaliation. Enforcement of settlement (not discussed here). Disposition Below: Dismissal under Fed. R. Civ. P. 12(b)(6) [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: No sovereign immunity against damage action for retaliation; 42 U.S.C. § 2000e-16 incorporates retaliation remedy from 2000e-3 and -5. Act of retaliation need not be employment related to constitute "adverse action," provided that it would deter employee from invoking protections of statute (noting split in circuits on issue). In this case, alleged refusal to investigate death threat against agent and spouse is adverse. Employee has no obligation to plead causation.

Broderick v. Donaldson, 437 F.3d 1226, 97 FEP 759 (D.C. Cir. 2006). Panel: BROWN, Henderson, Rogers. Claim on Appeal: Title VII retaliation Contempt proceeding (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Although employee's prior sex harassment lawsuit and trial were protected activity (and also, arguably, was her subsequent memo complaining about degree of supervision and alluding to the instatement order she won at trial), denial of request that she be allowed to report to a supervisor higher in the chain of command was not sufficiently adverse to constitute retaliation. Requested change would require change in supervisor's responsibilities rather than her own, and was primarily dignitary in nature.

Lutkewitte v. Gonzales, 436 F.3d 248, 97 FEP 649 (D.C. Cir. 2006). Panel: Per Curiam [Tatel, Edwards] [BROWN, concurring in the judgment]. Claims on Appeal: Title VII harassment (sex). Disposition Below: Judgment following a jury trial [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: District court did not err in instructing jury on Faragher/Ellerth defense. The plaintiff contended that strict employer liability attaches under a "tangible employment action" theory -- without the benefit of the affirmative defense -- whenever an employee submits to sexual propositioning to obtain job-related benefits. Whatever the merits of such a legal argument (citing Holly D. v. Cal. Tech., 339 F.3d 1158, 1174 (9th Cir. 2003), and Jin v. Metro. Life Ins. Co., 310 F.3d 84, 98 (2d Cir. 2002), in support)), plaintiff herself offered only her own subjective impression that her next-in-command conditioned benefits on sex. Moreover, the only solid benefits plaintiff identified were a new take-home vehicle and expanded staff/responsibilities, neither of which the panel found to be "tangible" or (in any event) to have been furnished quid quo pro in response to submission to sex.

Hussain v. Nicholson, 435 F.3d 359, 97 FEP 466 (D.C. Cir. 2006). Panel: TATEL, Henderson [ROGERS, concurring]. Claims on Appeal: 1. Title VII promotion (race, religion, national origin). 2. Title VII retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. District court did not err in denying an extension of time under Fed. R. Civ. P. 16(b) on grounds of attorney neglect, where plaintiff had taken pre-filing discovery through administrative process, the belated filing of summary judgment presented no prejudice and denial of leave was not entered as a sanction. Plaintiff waived argument under Rule 56(f). On the merits, plaintiff failed to establish in two non-promotions that he was significantly better qualified. 2. Twelve instances of retaliation were either not materially adverse or there was no proof of causation. Collectively, the actions could be treated as harassment, but the instances were not sufficiently severe or pervasive.

Holcomb v. Powell, 433 F.3d 889, 97 FEP 287 (D.C. Cir. 2006). Panel: BROWN, Rogers, Williams. Claims on Appeal: 1. Title VII promotion (race). 2. Title VII retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Reversed [plaintiff]. Grounds: 1. Employer furnished legitimate explanation for promotion of white candidate over plaintiff. The record failed to reveal that the employee was substantially more qualified than the successful white candidate. Nothing in the employee's prior favorable performance evaluations contradicted decision maker's testimony that winning candidate had "broader understanding" of EEO complaint process, plaintiff lacked experience processing EEO complaints, and lack of experience with accept/dismiss letters. addition al circumstantial evidence lacked support in the record. Evidence of other discrimination complaints against same decision maker, standing alone, not probative (FRE404(b)). Evidence of departure of other non-whites not probative where plaintiff failed to show demographics of unit before and after manager arrived. 2. Genuine issue of material fact about "adverse employment action" where employee was reduced from Grade 11 professional work to Grade 5 clerical work for period of years. Genuine issue of material fact about causation, where adverse decisions about employee were made throughout period when plaintiff made EEO complaints within agency.

Smith v. District of Columbia, 430 F.3d 450, 17 A.D. Cases 577 (D.C. Cir. 2005) . Panel: BROWN, Tatel, Edwards. Claims on Appeal: 1. ADA retaliation. 2. ADA discrimination. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Reversed [plaintiff]. Grounds: 1. Assuming plaintiff presented prima facie case, plaintiff procedurally forfeited response to employer's legitimate non-discriminatory reasons for alleged adverse actions. 2. Defendant waited 16 months past deadline for dispositive motion, then filed 10 days before trial. District court abused discretion under Fed. R. Civ. P. 6(b) by allowing late filing without proof of excusable neglect.

Jones v. District of Columbia Dep't of Corrections, 429 F.3d 276, 96 FEP 1441 (D.C. Cir. 2005) . Panel: BROWN, Ginsburg, Tatel. Claims on Appeal: 1. Title VII and D.C. law harassment (sex). 2. Title VII and D.C. law retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Affirmed [defendant]. Grounds: 1. Defendant could not raise Faragher/Ellerth defense on summary judgment because defendant failed to plead it as a defense (Fed. R. Civ. P. 8(c)). Case remanded to district court to consider whether to grant leave to defendant to amend its answer. 2. Alleged verbal harassment was isolated and not severe. Change in shift had been authorized 17 days before her EEO complaint. Transfer to allegedly undesirable "tower" duty not adverse, where reassignment was lateral, plaintiff conceded that assignment to tower duties was within the range of her ordinary duties, and plaintiff did not prove that her transfer was for an unusually long duration.

Bennett v. Chertoff, 425 F.3d 999 (D.C. Cir. 2005). Panel: ROGERS, Randolph, Williams. Claims on Appeal: Title VII termination (race) and retaliation. Disposition Below: Dismissal under Fed. R. Civ. P. 12(b)(1) [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds : Where denial of job was predicated on applicant's inability to obtain security clearance (i.e. determination of suitability), such denial was executive decision unreviewable in federal court, in deference to national security interests.

Porter v. Natsios, 414 F.3d 13, 95 FEP 1872 (D.C. Cir. 2005) . Panel: ROGERS, Ginsburg, Roberts. Claims on Appeal: Title VII retaliation. Disposition Below: Plaintiff prevailed at jury trial $30,000 compensatory damages, attorneys fees, injunction against further retaliation), but court denied back pay and instatement [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: District court did not abuse discretion under 42 U.S.C. § 2000e-5(g)(1). Agency preserved same action defense by putting it in the pre-trial order. Assuming that the 1991 Act reserves the 'same action' defense under § 2000e-5(g)(2)(B) for the jury, Porter waived right to a jury instruction on that defense when he objected to defense request for instruction and agreed instead to an instruction that asked the jury only to determine liability based on a finding of discrimination or retaliation as 'a motivating factor.' By electing to prove liability under § 2000e-2(m) instead of 2000e-2(a), agency could pursue defense in post-trial proceedings for equitable relief. Court leaves open question of whether "motivating factor" analysis applies to retaliation cases (waived by agency). District court made sufficient findings to support that jury award and injunction alone were full relief. Conclusion that plaintiff would not have been promoted in absence of retaliation not clearly erroneous

Booker v. Robert Half Int'l, Inc., 413 F.3d 77, 95 FEP 1841 (D.C. Cir. 2005) . Panel: ROBERTS, Randolph, Williams. Claims on Appeal: D.C. law constructive discharge. Disposition Below: Motion to compel arbitration granted, but arbitration clause barring punitive damages severed [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Arbitration agreement substantially enforceable under D.C. contract law and FAA. Provisions regarding, inter alia, discovery, burden of proof and qualification of arbitrators not shown on their face to prevent plaintiff from vindicating statutory rights. Risk that provisions might interfere was speculative. One illegal provision, barring recovery of punitive damages, could be severed by use of severability clause. Court noted possible circuit split on this issue between Ninth, Tenth and Eleventh Circuits (which struck down entire contracts) and Sixth and Eight Circuits (which did not). Employee did not have to consent in writing to severance under contract's validity clause, because severance clause constituted enforceable agreement allowing court to sever provisions and enforce balance of agreement.

Hansson v. Norton , 411 F.3d 231, 95 FEP 231 (D.C. Cir. 2005). Panel: ROGERS, Edwards, Garland. Claim on Appeal: Suit for Title VII fees . Disposition Below: Dismissed under Fed. R. Civ. P. 12(b)(1) [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds : District court lacks subject matter jurisdiction over pure claim for fees for settlement of Title VII claim, which must be brought in federal court of claims under Tucker Act.

Scott v. Johannes, 409 F.3d 466, 95 FRP 1551 (D.C. Cir. 2005). Panel: TATEL, Ginsburg, Garland. Claims on Appeal: Title VII promotion (race). Disposition Below: Dismissal for failure to state a claim, Fed. R. Civ. P. 12(b)(6) [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Federal employee who obtains a final administrative disposition from EEOC Office of Federal Operations, finding in employee's favor on liability but not relief, cannot file an action in federal court challenging only the remedy under 42 U.S.C. § 2000e-16(c), noting split in the circuits between Fourth and Ninth Circuits (which allow such actions) and Tenth Circuit (which bars them).

Shekoyan v. Sibley, Inc., 409 F.3d 414, 95 FEP 1562 (D.C. Cir. 2005): Panel: HENDERSON, Sentelle, Rogers. Claims on Appeal: Title VII failure to rehire (national origin). False Claims Act and pendant claims (not discussed here). Disposition Below: Dismissal for lack of subject matter jurisdiction, Fed. R. Civ. P. 12(b)(1) [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Under 42 U.S.C. § 2000e-1(a) and (f), did not cover a resident alien employed by a private U.S. corporation, hired and trained in the U.S., but deployed to the Republic of Georgia.

Shea v. Rice, 409 F.3d 448, 95 FEP 1555 (D.C. Cir. 2005). Panel: HENDERSON, Rogers [WILLIAMS, concurring]. Claims on Appeal: Title VII pay (race and ethnicity). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Claim that white male plaintiff continues to receive paychecks set on a discriminatory pay scale (under a diversity program to retain minorities in 1991) arises anew with each paycheck, under Bazemore v. Friday, 487 U.S. 385 (1986), and is not a present effect of past discrimination under Lorance v. AT&T Techs., 490 U.S. 900 (1989). Morgan did not impliedly overrule Bazemore.

Venetian Casino Resort, LLC v. EEOC, 409 F.3d 359, 95 FEP 1373 (D.C. Cir. 2005). Panel: EDWARDS, Tatle, Garland. Claims on Appeal: Challenge to internal procedures regarding disclosure of confidential information. Disposition Below: Dismissed on ripeness grounds, Fed. R. Civ. P. 12(b)(1) [defendant EEOC]. Outcome on Appeal: Reversed and remanded [plaintiff]. Grounds: Challenge to EEOC Compliance Manual Section 83, regarding disclosure of information in open case files without notice to employer, ripe where EEOC presently possessed asserted trade secrets or proprietary information of employer under investigation. Record on state of the present policy was unclear and case was remanded for further consideration of whether present policy violated Trade Secrets Act, FOIA or APA.

Roebuck v. Washington, 408 F.3d 790, 95 FEP 1350 (D.C. Cir. 2005). Panel: GINSBURG, Henderson, Randolph. Claims on Appeal: Title VII harassment (sex). Disposition Below: Judgment entered following a jury trial [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Affirming judgment based on jury finding on employer's affirmative Faragher defense. Plaintiff did not suffer tangible employment action (changing locks on office and reassignment to different duties), and jury found that plaintiff did not make timely complaint. Though instruction stated that plaintiff presumably should have used employer's formal policy, which was error, error was not prejudicial because the reset of charge clarified that what mattered was the timing of the complaint.

George v. Leavitt, 407 F.3d 405, 95 FEP 1362 (D.C. Cir. 2005): Panel: EDWARDS, Henderson, Randolph . Claims on Appeal: 1. Title VII and termination (race and sex). 2. Title VII harassment (race and sex). 3. Title VII retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Affirmed [defendant]. 3. Affirmed [defendant]. Grounds: 1. District court erred in analyzing prima facie case. In termination case, it was sufficient to present inference of discrimination that the most common legitimate reasons (performance and job elimination) were not present; plaintiff not required to prove that she was replaced by individual outside of the protected group. Plaintiff established genuine issue of material fact on pretext. Record lacked support for criticism of her performance; accusation of having a difficult personality, performance issues, claims that she was subject to numerous complaints unsubstantiated or disputed by performance evaluation and affidavits. Also, evidence that white males were tolerated when same complaints were made about them. On remand, defendant might demonstrate on renewed summary judgment motion that supervisor honestly and reasonably believed proffered reasons. Although supervisor was not decision maker, his participation in decision was sufficient to impute liability. 2. Insulting behavior not sufficiently severe or pervasive to constitute harassment. 3. Incidents that plaintiff reported were not reasonably considered harassment, so plaintiff's complaints did not fall within opposition clause.

Murray v. Gilmore, 406 F.3d 708, 95 FEP 1298 (D.C. Cir. 2005). Panel: TATEL, Rogers, Garland . Claims on Appeal: 1. Title VII and section 1981 termination (race). 2. Title VII termination (sex). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Reversed [plaintiff]. Grounds: 1. Plaintiff was replaced by another African -American; no other basis in record to infer race discrimination. 2. Recommendation by city examiner finding that reasons for RIF were pretextual not entitled to preclusive effect. Nevertheless, plaintiff presents genuine issue of material fact about whether her position was eliminated or simply reassigned to a male, plus addition al evidence that another employee was added to the roles and that only individuals RIFfed were women. Defense attorney at oral argument admitted that record supported pretext.

Salazar v. Washington Metropolitan Area Transit Authority, 401 F.3d 504, 95 FEP 681 (D.C. Cir. 2005) . Panel: TATEL, Sentelle [WILLIAMS, dissenting]. Claims on Appeal: Title VII promotion (national origin). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Peruvian-born Latino presented genuine issue of material fact about employer's explanation that more qualified candidates were selected for the position through a fairly administered selection process. Record included facts that a jury could interpret as probative of discrimination: (1) allegedly biased manager engineered presence of crony (named Jaggie) on second-stage interview panel; (2) that Jaggie decided how to examine and score the candidates, and chaired the panel; (3) plaintiff lost out in process, and (4) the successful candidate never received the promotion, but was parceled out to less responsible work elsewhere. A reasonable jury could infer the selection process was geared not to finding the best person for the position, but rather to keeping plaintiff from advancing.

Law v. Continental Airlines Corp., Inc., 399 F.3d 330 (D.C. Cir. 2005). Panel: WILLIAMS, Ginsburg, Garland. Claims on Appeal: ADEA compensation. Disposition Below: Summary judgment [defendant] . Outcome on Appeal: Affirmed [defendant]. Grounds: Finding time-barred claim that CBA discriminated against pilots 58 and older by allowing them to receive pay protection only after junior pilot receives training (for which older pilot would have been eligible), while pilots under 58 under a different provision could receive pay protection before junior pilot receives training. Morgan treats paychecks as discrete event; adoption of CBA was the critical event, while pay was at most a consequence of a past act.

Haynes v. Williams, 392 F.3d 478, 16 A.D. Cases 462 (D.C. Cir. 2004). Panel: GARLAND, Edwards [WILLIAMS, concurring]. Claim on Appeal: ADA termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds : District court erred in holding that plaintiff could not supply own affidavit regarding the extent to which his impairment (idiopathic pruritus, which caused itching) affected his ability to sleep. Summary judgment affirmed on alternative basis that symptoms occurred only in his office, and plaintiff failed to show that impairment occurred outside of the single workplace, hence the impairment was not substantially limiting within the meaning of the ADA.

Carter v. George Washington University , 387 F.3d 872, 94 FEP 1238 (D.C. Cir. 2004). Panel: TATEL, Sentelle, Roberts. Claims on Appeal: Title VII (sex, race and retaliation), ADEA, and § 1981 promotions. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Plaintiff waived direct evidence argument by nor presenting it in district court. For first promotion, though conceding prima facie case, employer proffered explanation that plaintiff interviewed poorly. Plaintiff presented no evidence that she interviewed well for this position, and hearsay evidence about other interviews for same job was inadmissible, nor evidence of discriminatory animus. For second position, plaintiff failed to rebut proffered explanation that selected candidate was superior (such as evidence that her own qualifications in the development field were significantly better). For third promotion, interviews were ended, job was not filled and was eventually restructured, so plaintiff not make out prima facie case (that job was filled by another candidate) and she did not meet the published criteria for the job. Other claims waived/unsupported.

In re England, 375 F.3d 1169, 94 FEP 195 (D.C. Cir. 2004). Panel: ROBERTS, Ginsburg, Garland. Claim on Appeal: First Amendment promotion (religion). Disposition Below: Discovery of selection board proceedings compelled [plaintiff]. Outcome on Appeal: Reversed [defendant]. Grounds: Selection board proceedings for promotion of Navy chaplain protected from disclosure under 10 U.S.C. § 618(f).

Barbour v. Washington Metropolitan Area Transit Authority, 374 F.3d 1161, 15 A.D. Cases 1352 (D.C. Cir. 2004). Panel: GARLAND, Roberts [SENTELLE, dissenting]. Claim on Appeal: Rehabilitation Act termination. Disposition Below: Immunity denied [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds : Interstate transit authority waived Eleventh Amendment immunity from Rehabilitation Act lawsuit by accepting federal funds.

Teneyck v. Omni Shoreham Hotel, 365 F.3d 1139, 93 FEP 1354 (D.C. Cir. 2004). Panel: EDWARDS, Henderson, Williams Claims on Appeal: 1. Title VII failure to hire. 2. ADEA failure to hire. Disposition Below: 1. Judgment as a matter of law [defendant]. 2. Judgment as a matter of law. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. At trial, during plaintiff's case-in-chief, she failed to present evidence that after she was turned down for housekeeping job, the position remained opened, thus omitting an element of the McDonnell Douglas pretext prima facie case (and thus failing to prove that there was a continuing vacancy). Although JAML motion was ruled upon after defendant had already introduced testimony of person in charge of hiring (who supplied this addition al fact in her direct testimony), district court did not abuse discretion in confining Rule 50 review to plaintiff's case-in-chief, where defendant was permitted to present first witness out-of-tun to accommodate a scheduling problem, and judge had warned plaintiff in advance of his intention to rule solely on the plaintiff's evidence. (Plaintiff failed to preserve objection to the procedure.) 2. Plaintiff failed to present an evidence on her ADEA claim that she was comparatively disadvantaged against substantially younger applicants.

                                                                                                        

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