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D.C. Circuit

Updated through July 8, 2019

D.C. Circuit

Iyoha v. Architect of the Capitol, No. 17-5252 (D.C. Cir. July 2, 2019). Panel: GRIFFITH, Garland, Rogers. Claims on Appeal: 1. Congressional Accountability Act of 1995 (CAA) denial of promotion (national origin). 2. Congressional Accountability Act of 1995 (CAA) retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant].  Outcome on Appeal: 1. Reversed [plaintiff]. 2. Affirmed [defendant]. Grounds: 1. Genuine dispute about whether explanation for failure to promote was pretextual. "Although the CAA and Title VII do not explicitly bar discrimination on the basis of foreign accent, a foreign accent and national origin are often intertwined, and courts can look to evidence of discrimination on the basis of one's accent in support of a claim of national origin discrimination." While the panel allows that an accent could present a legitimate employment issue if it interfered with the employee's ability to communicate and do their job, employer did not argue that plaintiff's "accent made him hard to understand or interfered with his ability to perform employment-related tasks." For the 2014 promotion, plaintiff identified decisionmaker named Clark, whom he also previously named in 2012 discrimination complaint. Clark allegedly said that she "would not have interviewed Iyoha if Architect policy did not require her to do so." She also supposedly participated in a discussion about "communication problems" within the division, during which another decisionmaker (Wiegmann) made comments about the foreign origin of certain staff. Clark and Wiegmann had been found not credible by the 2012 hearing officer with respect to the reasons for Iyola's reassignment. Also in 2014, Wiegmann served as one of the interviewers and gave Iyola a poor score. The panel holds that the district court erred in drawing inferences in favor of AOC about Wiegmann's prior comments about Iyola's accent: "Although a jury might conclude that some of Wiegmann's comments were merely expressions of legitimate concern, that is not the only reasonable interpretation. For instance, it is difficult to see how Wiegmann's joke that his phone's voice recognition software 'even recognizes [Iyoha's] accent,' J.A. 1099, is connected to legitimate concerns about effective communications." The district court also erred in assuming that Wiegmann's remarks were stay remarks made too far in the past (a couple of years) to be probative: "The most recent statement was made just a few months prior to the 2014 employment decision directly at issue here, when Wiegmann made comments regarding the ability of his phone's voice recognition software to understand Iyoha's accent. What's more, Wiegmann had shown during the 2012 reorganization that he was willing to take action to exclude people with foreign accents from the Production Management Branch. A reasonable juror could conclude that Wiegmann's comments and actions are evidence of a discriminatory attitude towards employees with foreign accents, and that a supervisor who was willing to remove Iyoha from the Branch in 2012 because of his accent would not want Iyoha leading that Branch in 2014 for the same forbidden reason." Wiegmann's presence on the panel therefore potentially contaminated the whole process: "Here, a jury could find that the senior member of the panel not only had a history of making jokes about Iyoha's foreign accent but had actually discriminated against him in the past by removing him from the same Branch in which he was seeking a new position, and was in a position to potentially influence the scores given by the other members of the panel." Finally, although the person promoted (Tseng) himself had an accent, the panel notes that "there is no testimony comparing Iyoha and Tseng's accents" and "Wiegmann's comments concern[ing] accents ... targeted Iyoha specifically." Regarding the 2015 process, the panel holds that while Wiegmann was absent from the interview panel, another person named Hernandez, who also "allegedly had a history of making comments about Iyoha's accent" did sit on the panel. Additionally, Clark - again the decisionmaker - changed the process in 2015 to hold two rounds of interviews rather than one as in 2014. "Iyoha argues, however, that Clark added the second interview midway through the process in order to ensure that a candidate [named A.M.] with a foreign accent was not selected." There was a dispute in the witness testimony about when in the process the decision to add a second interview was made. A jury nevertheless "could determine that Clark was trying to conceal the timing of the decision to hold a second round of interviews-and consequently, was trying to conceal the reason behind the second round of interviews as well." A negative inference might also be drawn from AOC's failure to produce a "justification memo" in discovery explaining its promotion decision internally, allegedly lost or destroyed during the course of the litigation. "Given a clear duty to preserve the 2015 justification memorandum and the Architect's lack of explanation for its loss, a jury could draw an adverse inference on this basis." 2. No genuine dispute on causation where there is a lack of temporal proximity between his 2012 complaints and the denials of promotions, and the absence of other evidence of retaliatory animus.

Mayorga v. Merdon, No. 18-5045 (D.C. Cir. June 28, 2019). Panel: GINSBURG, Srinivasan, Wilkins. Claims on Appeal: Congressional Accountability Act of 1995 (CAA) denial of promotion (national origin). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Because employer submitted a legitimate non-discriminatory reason for its decision not to allow plaintiff to advance in the process, i.e., his qualifications and his interview, the panel focuses on whether there was sufficient basis in the record to challenge that explanation. The panel finds several points of contention. (1) Employer claimed that plaintiff lacked a background with the Building Automation System Network (BASnet). Yet there was evidence not only that plaintiff specified that experience in his resume, but that people involved in decision had personal exposure to plaintiff's work troubleshooting in this area. This was bolstered by evidence that even though plaintiff was not part of the EMCS Branch that administered that system, other employees outside of that office were also credited with BASnet experience. (2) There was a dispute about whether plaintiff admitted in the interview that he applied for the wrong position; the witnesses' testimony was in direct contradiction on this point. (3) There was a dispute about whether plaintiff had experience with "Cisco network equipment" and "Ethernet and fiber-optic cables," where he presented both his application and witness testimony showing that he had a background with such equipment. (4) There was the evidence of two people involved in decision (Bieber and Wallace) allegedly demeaning plaintiff in the past. "[T]he question whether Bieber called [plaintiff] Mayorga 'Caviar' and mocked his accent hinges upon Mayorga's and Bieber's credibility, 'an issue that is quintessentially one for the finder of fact.'" Moreover, "Mayorga clearly testified that Wallace has previously called him "Caviar" - a particularly significant accusation because Wallace was on the selection panel." While not determinative, the panel found these incidents were at least probative of discrimination.

Mawakana v. Board of Trustees of the Univ. of the District of Columbia, No. 18-7059 (D.C. Cir. June 14, 2019). Panel: HENDERSON, Rogers, Pillard. Claims on Appeal: Title VII (race) and D.C. law denial of tenure and termination. Contract claim (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: The concept of "academic freedom" under rubric of First Amendment nevertheless does not entitle a university to special deference in Title VII tenure cases, noting split in circuits. While defendant advances a legitimate, non-discriminatory reason for its decision (it says he was denied tenure because his scholarship was deficient), there is enough evidence to present a genuine dispute regarding pretext: (1) evidence that the University, and specifically the dean who made principal recommendation, treated certain criteria differently when assessing the scholarship of Black tenure candidates as opposed to white candidates; (2) Dean's apparent change in position on candidate's scholarship and appointment to role of Faculty Athletics Representative; (3) evidence that Dean used her influence in a manner generally more supportive of white than Black tenure candidates; (4) two members of the University faculty who had personal knowledge of the tenure review process testified that they believed the University had disfavored Black professors within that process; and (5) whites were disproportionately successful in achieving tenure over Blacks.

Davis v. District of Columbia, 925 F.3d 1240, 2019 FEP 210,477 (D.C. Cir. 2019). Panel: PILLARD, Millette [KATSAS, dissenting in part]. Claims on Appeal: 1. Title VII (race) and D.C. law disparate impact termination. 2. Title VII (race) and D.C. law disparate impact hiring. 3. Title VII (race) and D.C. law termination. 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 holding that plaintiffs failed to identify a "particular employment practice" susceptible to challenge for its disparate racial impact under Title VII. 42 U.S.C. § 2000e-2(k)(1)(A)(i). "[T]his is the first time this court has been asked whether a RIF or, more precisely, the practices through which an employer implements a RIF are subject to disparate-impact review under Title VII." While disparate-impact plaintiffs cannot rely on a "mere measurement of statistical shortfall" to make out their claim, the district court erred in holding that "plaintiffs identified only 'an overall decisionmaking process,' which did not meet the statutory requirement to identify the particular practices that caused them to lose their jobs. "There is no mystery in this case as to the layoff practices plaintiffs challenge: the Agency's choices to (a) target the SWA and SSA job categories for elimination; and (b) allow managers to make putatively individualized, discretionary and subjective choices of which positions to winnow from other units." This was quite enough to meet their burden under 42 U.S.C. § 2000e-2(k)(1)(A)(i). "To the extent that a completed RIF is an identified event comprising selection and termination of a rash of employees, it is a far cry from the challenges to bottomline 'racial imbalance in the work force' that precedent and our colleague eschew." On remand, the district court is directed to determine whether "plaintiffs clear the statistical [disparity] hurdle." If so, "the parties will have an opportunity after appropriate discovery to address whether the Agency's execution of the reduction in force was justified by business necessity. Justification supporting elimination or downsizing of certain offices might at that point be seen to respond to the relevant statistical showing." Case also remanded for reconsideration of class certification motion. 2. Summary judgment properly granted on challenge to college-degree requirement because plaintiffs failed to establish a racial disparity with relevant evidence of a qualified applicant pool. 3. Two plaintiffs were personally estopped from pursuing claims because they failed both "to disclose their potential Title VII claims in their bankruptcy petitions" and failed to present any evidence (including their own testimony) that the omission was inadvertent or mistaken. Even if defendant did not raise argument, because it goes to integrity of court it may be raised sua sponte.

Haynes v. D.C. Water and Sewer Auth., ., 924 F.3d 519, 2019 A.D. Cases 180,232 (D.C. Cir. 2019). Panel: GRIFFITH, Henderson, Williams. Claims on Appeal: 1. ADA and DC civil rights law termination. 2. Title VII and ADEA termination. 3. § 1981 termination. 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 equitable tolling for late filing of complaint after right-to-sue letter; learning disability that affected reading and comprehension not a ground for tolling (on grounds of plaintiff being non compos mentis); evidence shows that Haynes was able to contact the EEOC, receive counseling about his legal rights, file a charge of discrimination, file a federal lawsuit, and eventually retain counsel. 2. EEOC charge (both text and checkboxes) only included disability, not race, color or age. Moreover, plaintiff could not show how information regarding race or age discrimination would arise from an investigation into an ADA claim. References to age of comparables in intake questionnaire (then crossed-off) insufficient to trigger age investigation. 3. No abuse of discretion denying motion to reopen discovery under FRCP56(d). Plaintiff's declaration described categories of discovery that he wanted to take but failed to "outline the particular facts [the nonmovant] intends to discover and describe why those facts are necessary to the litigation." Nor was requested discovery likely to result in production of relevant evidence. Defendant's proffered reason for not hiring was that plaintiff lacked professional license, while requested information was about employees in a different category.

Figueroa v. Pompeo, No. 18-5064 (D.C. Cir. May 10, 2019). Panel: WILKINS, Henderson, Edwards. Claims on Appeal: 1. Title VII disparate impact promotions (race, national origin). 2. Title VII promotions (race, national origin). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant].  Outcome on Appeal: .1 Affirmed [defendant]. 2. Reversed [plaintiff]. Grounds: 1. While acknowledging that there were statistical disparities in promotion rates for Latino applicants, "even if the record evidence indicates a substantial disparity, the evidence does not demonstrate how the annual refresh, as opposed to other aspects of the promotion process, leads to the disparity." 2. For employer to simply assert that the candidates who were promoted under a facially-neutral policy "were better qualified than Figueroa" is not enough to meet the second-stage burden of production under McDonnell Douglas. "An employer cannot satisfy its burden of production with insufficiently substantiated assertions." The panel elaborates four factors that underlie the second-stage burden of production: "First, the employer must produce evidence that a factfinder may consider at trial (or a summary judgment proceeding). Second, the factfinder, if it "believed" the evidence, must reasonably be able to find that 'the employer's action was motivated by' a nondiscriminatory reason. That is, the employer must 'raise a genuine issue of fact as to whether the employer intentionally discriminated against the' employee. Third, the nondiscriminatory explanation must be legitimate. In other words, the reason must be facially 'credible' in light of the proffered evidence .... [Finally], as the fourth factor, the evidence must present a 'clear and reasonably specific explanation.'" Thus, "[w]e hold that an employer at the second prong must proffer admissible evidence showing a legitimate, nondiscriminatory, clear, and reasonably specific explanation for its actions. The evidence must suffice to raise a triable issue of fact as to intentional discrimination and to provide the employee with a full and fair opportunity for rebuttal. When the reason involves subjective criteria, the evidence must provide fair notice as to how the employer applied the standards to the employee's own circumstances." Absent more of an explanation of how the criteria were applied to the plaintiff, the panel holds that the agency's proffer left Figueroa nothing to respond to. Especially with subjective standards, "we ... perceive an intolerable risk that a nefarious employer will use them as cover for discrimination." Here, "[n]one of the presented evidence sheds light on how the selection boards applied the core precepts to Figueroa's case. All we know is that the board determined Figueroa to be mid-ranked - which at most says he was not deficient in any relevant skill. But that fact does not explain why the boards deemed him less qualified than the highest-ranked candidates." Especially because Figueroa's records revealed no clear deficiencies, simply knowing the process that the agency used does not assist the plaintiff in determining why he fell short. On remand, the district court is directed to "revisit Figueroa's summary judgment cross-motion. Under the McDonnell Douglas framework, an employee who proves her prima facie case is entitled to a presumption that the employer discriminatorily mistreated her. The presumption dissipates only if the employer meets its burden of production. Here, the District Court did not determine whether Figueroa made a prima facie case [because defendant conceded it for purposes of the motion.]"

Steele v. Mattis, 899 F.3d 943 (D.C. Cir. 2018). Panel: MILLETT, Griffith, Pillard. Claims on Appeal: ADEA termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Plaintiff presented genuine dispute of material fact about pretext. District court erred legally by imposing a "heightened" standard of pretext based on the employer being a college. Dispute about college's stated budgetary rationale where it only explained why they were eliminating job, and not why they terminated plaintiff, combined with the refusal of the Dean and other supervisors to tell plaintiff at the time of his termination why he had been targeted. There were also two substantially younger professors in the same department who were not fired, while two younger scholars were hired, and a younger professor was assigned to teach plaintiff's former courses. Also, evidence of shifting reasons, as college moved from budgetary reasons to performance during grievance process. There was also direct evidence, where first-level supervisor made disparaging remarks about older employees and supportive ones about younger ones (older employees are "stubborn," "difficult to work with," and "cantankerous"; "pointed to a particular older person as a case study in why it's not good to have lots of older employees at [the College]"; "young people are such a breath of fresh air," "eager to please," "work hard," are "enthusiastic," and are the "kind of young people who are making [the College] marvelous"). This was credibly a cat's-paw situation, where first-line supervisor present at the meeting and "in those discussions" where the decision to terminate plaintiff was made. Not stray remarks; "[Supervisor] allegedly gave voice to the very type of "arbitrary" stereotypes and prejudices about older workers' abilities that Congress enacted the ADEA to halt."

Hill v. Assocs. for Renewal in Education, Inc., 897 F.3d 232 (D.C. Cir. 2018). Panel: WILKINS, Rogers, Kavanaugh [WILKINS, concurring]. Claims on Appeal: 1. ADA reasonable accommodation. 2. ADA harassment. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Affirmed [defendant]. Grounds: 1. Genuine dispute of material fact whether school failed to reasonably accommodate amputee by providing classroom aide. Plaintiff alleged that he experienced pain and bruising on his stump while standing for long periods of time, and specifically connected that hazard to supervising his class without assistance. Construing Jury could find that if school provided plaintiff a classroom aide as it did for his colleagues, that aide could help him supervise students in the classroom and during outdoor activities, reducing his need for prolonged standing and mitigating the alleged "hazard of pain and bruising." Although school argued for the first time on appeal that the requested accommodation would not be reasonable, there was a genuine dispute about whether he would suffer "pain and bruises" from prolonged standing while supervising his classroom alone. "[A] reasonable jury could find that Hill's disability put him at risk of pain and bruises when standing for long periods of time, that he would have to stand for long periods of time while supervising his classroom or outdoor play without an aide to assist him, and that he did in fact suffer harm 'due to injury and fatigue' during the time he was denied the accommodation of a classroom aide." Forcing employee to work with pain when that pain could be alleviated by a requested accommodation may violate the ADA. 2. Even assuming that the ADA allows recovery for a hostile work environment, denial of aide and assignment to third floor alone was not severe enough to create an abuse environment.

Ashbourne v. Hansberry, 894 F.3d 298, 130 FEP 1663 (D.C. Cir. 2018). Panel: MILLETT, Tatel, Srinivasan. Claims on Appeal: Title VII termination (race, sex). Disposition Below: Dismissed for failure to state a claim, FRCP12(b)(6) [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Res judicata applies to Title VII claims even when the plaintiff had not yet gotten a right-to-sue letter, in the absence of a particularized showing that prosecuting or otherwise preserving the claims in the initial litigation was infeasible. Plaintiff had alternatives, including that she could have (1) added her Title VII claims to her litigation after Treasury's equal employment opportunity office denied her claim in December 2012; (2) added her Title VII claims to the final consolidated complaint filed in district court after the transfer, when the district court specifically invited her to include all claims she wished to litigate against the defendants in a single proceeding; (3) sought a stay of the initial litigation from the district court pending the conclusion of administrative proceedings; or (4) sought expedited issuance of a right-to-sue letter from the EEOC.

Drielak v. Pruitt, 890 F.3d 297 (D.C. Cir. 2018). Panel: RANDOLPH, Henderson, Katsas. Claims on Appeal: 1. Title VII denial of transfer. 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. On 45-day limitations period for federal-sector employee to complain to EEO counselor, employee cannot create genuine dispute that conversation that allegedly put him on notice about age discrimination occurred after he had already filed complaint. As for timely complaints, there was no material change in responsibilities or otherwise. 2. Fifteen-month period between protected activity and reassignment lacked temporal proximity, and agency's asserted reason for acting-that an understaffed division needed more agents-is an explanation plaintiff himself recognized.

Durant v. District of Columbia, 875 F.3d 685 (D.C. Cir. 2017). Panel: EDWARDS, Garlan, Williams. Claims on Appeal: 1. Title VII retaliation. 2. Title VII harassment. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. For pre-October 2007 claims, district court did not err in holding that limitations issue was conceded. District court properly explored the entire (notwithstanding waiver), assessing the merits of the District's argument, and stating its reasons for finding that there was no evidence to defeat the District's motion for summary judgment on timeliness grounds. Plaintiff also waived waiver argument in district court, and plaintiff presented no evidence that he filed a timely charge with the EEOC or D.C. Office of Human Rights. For subsequent claims, plaintiff failed to create a genuine dispute whether actions were materially adverse. A reprimand letter setting forth allegations of deficient work performance, refusal to assign him a government vehicle, and suspension of arrest authority are not materially adverse actions. Termination was supported in record by legitimate, non-discriminatory reason (position eliminated due to budget), and plaintiff conceded that he was terminated due to RIF. Temporal proximity alone (four months) not enough. 2. Record includes not evidence of severe or pervasive conduct. Because plaintiff had a full opportunity to depose witnesses and obtain documents by discovery and has failed to explain to this court why addition al discovery would be helpful, we deny his request to remand the case for supplementation of the record.

Gill v. FBI, 875 F.3d 677 (D.C. Cir. 2017). Panel: Per curiam (Rogers, Silberman) [TATEL, concurring]. Claims on Appeal: Equal Protection (religion). Statutory and constitutional claims (not discussed here). Disposition Below: Dismissed for failure to state a claim and jurisdiction, FRCP12(b)(1) and (6) [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Plaintiff failed to administratively exhaust claim with Department of Justice's Access Review Committee.

Coleman v. Duke, 867 F.3d 204, 130 FEP 613 (D.C. Cir. 2017). Panel: MILLETT, Tatel [HENDERSON, dissenting]. Claims on Appeal: Title VII retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Plaintiff adequately exhausted retaliation claim regarding denial of a promotion. Complaint mentioned denied promotion, supported by declaration. Although only potentially retaliatory event was prior to plaintiff's contact with agency's EEO office in December 2010, district court overlooked that position for which plaintiff was rated "qualified" continued not be filled a full month after plaintiff filed complaint. Letter sent to counsel that supposedly narrowed grounds for investigation was ambiguous because it listed retaliation and proceeded to list other incidents as "examples." Omission of claim without explanation violated rule that agency give notice of and explain partial dismissals. Judgment cannot be affirmed on alternative ground that plaintiff failed to rebut legitimate, non-discriminatory reason on summary judgment. Plaintiff had no such opportunity to conduct discovery (summary judgment was granted on exhaustion first). The failure to advertise a position competitively itself can support a Title VII claim and can be considered an adverse action. Plaintiff disputes comparable employee's comparative qualifications for the position, an allegation that is plausibly grounded in the record evidence showing that plaintiff was deemed "qualified" for the position when he was interviewed.

Crawford v. Duke, 867 F.3d 103, 130 FEP 579 (D.C. Cir. 2017). Panel: MILLETT, Rogers, Pillard. Claims on Appeal: Title VII discrimination (race), retaliation, and harassment. Disposition Below: Dismissed for failure to state a claim, FRCP12(b)(6) [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: District court legally erred in holding that information contained in attachments to a formal EEO complaint cannot support exhaustion. Nor did agency follow the regulatory procedures for dismissing any of the claims initially raised in the complaint (29 C.F.R. § 1614.107). Plaintiff thus exhausted claims of racial discrimination, retaliation, and a hostile work environment arising out of suspicious October 2011 performance evaluation and December 2011 five-day suspension. Plaintiff attached copies of the performance review and suspension notice to his complaint, which put the Department on notice that it was of concern and merited investigation, and made note of it in written summary. Plaintiff did not, however, properly exhaust his claimed denial of a promotion (neither attached documentation nor noted in summary). 

Ortiz-Diaz v. United States Department of Housing & Urban Development, 867 F.3d 70, 130 FEP 645 (D.C. Cir. 2017). Panel: ROGERS [ROGERS, concurring] [HENDERSON, concurring in the judgment] [KAVANAUGH, concurring]Claims on Appeal: Title VII transfer (race, national origin). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Being denied a transfer away from a racially and ethnically biased supervisor to a non-biased supervisor more likely to advance his career, is materially adverse employment action. Plaintiff presented genuine dispute of material fact about whether transfer would have been beneficial created by employee declaration that opening existed; that requested transfer would allow him "to gain [investigative field] experience at the GS-14 level, [and to] establish favorable relationships with supervisors in the field," whose support "would make it more difficult for [biased supervisor] to deny a promotion for [him]"; and that transfer would place him in office viewed more favorable for promotion. Evidence that similarly situated investigators had previously been allowed to work remotely or from Department locations without an investigative office, and evidence that the transfer position remained open until months after plaintiff's resignation, strengthened the inference that supervisor's stated rationale for the transfer denials was pretextual.

Nisky v. Kelly, 859 F.3d 1, 130 FEP 241 (D.C. Cir. 2017). Panel: MILLETT, Pillard, Williams. Claims on Appeal: Title VII discrimination (race) and retaliation. Disposition Below: Dismissed for failure to state a claim, FRCP12(b)(6) [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Plaintiff's claims dismissed for failure to exhaust administrative remedies. Plaintiff suffered a materially adverse employment action when security clearance was suspended, and suspension resulted in a complete inability to perform all of his job responsibilities. Plaintiff made timely contact with EEO Counselor. Plaintiff could not have been expected to file a formal EEO complaint during the four-year time period preceding his security clearance suspension. EEO counselor dropped the ball on processing his informal claim. By telling plaintiff to delay filing a formal complaint until the security clearance was actually revoked, the counselor ignored her obligation under the regulations to begin the EEO process immediately and to inform plaintiff of his rights in the process, so that period could be tolled. Nonetheless, the formal revocation of plaintiff's security clearance in March 2006, the denial of his appeal of that revocation in May 2007, and his termination in August 2007, were new adverse employment actions that ended the period of equitable tolling. Efforts to appeal the security clearance revocation, letters plaintiff submitted to agency officials challenging the various adverse personnel decisions, and his proceedings before the MSPB did not toll time.

Johnson v. Interstate Mgt. Co. LLC, 849 F.3d 1093, 129 FEP 1736, 33 A.D. Cases 523 (D.C. Cir. 2107). Panel: KAVANAUGH, Henderson (MILLETT, concurring in the judgment). Claims on Appeal: Title VII, ADA, and ADEA retaliation. OSHA claim (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Plaintiff failed to creates genuine dispute about the legitimate, non-retaliatory reason proffered for losing his job, i.e., because of his "repeated performance failings and workplace deficiencies" at the hotel, culminating in his alleged preparation of a breaded chicken breast with plastic melted under the breading. Defendant's business records indicate that plaintiff violated company policy on at least 13 separate occasions; plaintiff does little aside from claiming that he did not commit the infractions and pointing to the fact that he did not sign the infraction reports. Plaintiff did not present evidence from which a reasonable jury could have concluded that defendant did not "honestly and reasonably believe" he engaged in the employment misconduct in question.

DeJesus v. WP Co. LLC, 841 F.3d 527, 129 FEP 1285 (D.C. Cir. 2016). Panel: WILKINS, Brown, Srinivasan. Claims on Appeal: Title VII (race), § 1981, and ADEA retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: An employer's "honest belief" in its reasons for termination will not win the day if the belief is unreasonable. There was sufficient evidence of unreasonableness for a jury to weigh in the plaintiff's favor. The employer fired the plaintiff in part for conduct that the supervisor initially admitted, in an email, presented "no worries." "Such an unperturbed reaction to a purportedly dischargeable offense, by itself, could cast doubt on the Washington Post's proffered reason." Further, the plaintiff was fired for doing precisely what the supervisor told him to do, i.e., pass the RAM along to a client representative. Finally, "characterizations contained in Wainwright's termination memo offer an account of plaintiff's actions that a reasonable jury could find misleading, even mendacious," because they offered contradictory accounts of manager's role. Bolstering this record were manager's alleged comments about and treatment of Black professionals." She made comments susceptible to being interpreted as race-inflected code, such as describing both DeJesus and Sharpe as 'not a good fit,' J.A. 574, complimenting DeJesus for 'speaking well,' J.A. 228-29, and dismissing an African American client representative as 'opinionated,' J.A. 230." Several Black colleagues corroborated plaintiff's account, testifying that Wainwright was especially condescending to and dismissive of them, refusing to respond to an African-American colleague even if the colleague spoke first. These accounts may be false, or it may well be that Wainwright was an equal-opportunity bully. But it is the province of a jury to credit, or not credit, this testimony." Sven if these comments did not directly concern the challenged employment decision (otherwise dismissed as "stray remarks"), a "jury could treat evidence of a decision maker's broad-based racial animus or bias as corroborating evidence that such animus or bias infected a particular employment decision." Moreover, the jury could consider "four specific instances in which top-level management purportedly 'forced out' older employees due to their age."

Ortiz-Diaz v. United States Dep't of Housing and Urban Dev., 831 F.3d 488, 129 FEP 641 (D.C. Cir. 2016). Panel: HENDERSON (HENDERSON, concurring)(KAVANAUGH, concurring) (ROGERS, dissenting). Claims on Appeal: Title VII failure to transfer (race). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: No adverse action. Denial of transfer, with "no diminution in pay or benefits" and no "other materially adverse consequences affecting the terms, conditions, or privileges of her employment." Under standing circuit law, this was enough to find that the plaintiff failed to state a claim. Plaintiff argued that change of supervisors (to one presumably less biased against his race) was itself material, but the majority regards this as a mere "subjective" preference for a boss that is not protected by Title VII. Also, no admissible evidence that the transfer would improve his career advancement.

Marshall v. Honeywell Technology Systems Inc., 828 F.3d 923, 129 FEP 584 (D.C. Cir. 2016). Panel: RANDOLPH, Henderson [GRIFFITH, dissenting]. Claims on Appeal: Title VII discrimination (race, sex) and retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Suit barred by "judicial estoppel," from plaintiff's failure to disclose action and related administrative proceedings with IRS on the schedules she filed in her Chapter 7 proceeding in the bankruptcy court. Noting circuit split about whether review of summary judgment on this ground is reviewed de novo or for abuse of discretion (D.C. Circuit and majority follow the latter). Oral disclosure to the trustee of the claims does not satisfy the Bankruptcy Code and did not furnish notice to creditors. Creditors were informed, incorrectly, that this was a "no asset" case. District court did not err in inferring intent to conceal, where the plaintiff listed other legal actions (against her) in disclosure and instructions on form were clear. (Also noting circuit split about standard for plaintiff to prove inadvertence or mistake.)

Al-Saffy v. Vilsack, 827 F.3d 85, 129 FEP 490 (D.C. Cir. 2016). Panel: MILLETT, Tatel, Edwards. Claims on Appeal: Title VII discrimination (national origin, religion) and retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: ALJ order that dismissed plaintiff's hearing request for his 2011 Complaint was not type of ruling that, after forty days of inaction by the agency, automatically became "final agency action" under 29 C.F.R. § 1614.109 and thus did not trigger Title VII's ninety-day time limit for filing civil action; the order simply returned the case to the agency for more proceedings. Order that dismissed 2012 Complaint - which dismissed the "case," and not just the hearing request - did not provide plaintiff with notice of his right to file a civil action as required by 42 U.S.C. § 2000e-16(c), and thus likewise did not trigger ninety-day period. Genuine issues of material fact regarding whether plaintiff had an joint-employment relationship with the State and Agriculture Departments, within the meaning of Title VII; while formally at the Agriculture Department, plaintiff reported directly to the Ambassadors of Saudi Arabiand Yemen, who are State employees, Secretary of Agriculture admitted in letters that plaintiff was to work for them, and representatives of embassies testified that they were involved in termination. Also a genuine dispute whether plaintiff knew about the State Department's alleged role in discrimination against him prior to 2013 as to render claim untimely; plaintiff contended that he first learned about the State Department's involvement in his termination upon the filing of the witness affidavits on summary judgment.

Alexander v. Washington Metropolitan Area Transit Authority, 826 F.3d 544, 32 A.D. Cases 1592 (D.C. Cir. 2016). Panel: Per Curiam (Millett, Edwards, Silberman). Claims on Appeal: Rehabilitation Act hiring. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: District court erred in failing to consider whether the employer "regarded" plaintiff - a recovered alcoholic - as "having ... an impairment," 42 U.S.C. §§ 12102(1), or discriminated against him for having a "record of ... impairment," id. § 12102(1)(B). Since ADAAA, the "regarded as" prong has become the primary avenue for bringing this type of discrimination claim (29 C.F.R. § 1630.2(g)(3)). Plaintiff need only show that agency took "a prohibited action against [him] because of an actual or perceived impairment." 29 C.F.R. § 1630.2(l)(2). Plaintiff presented genuine dispute over whether agency refused to hire him because of his alcoholism. Plaintiff showed that he was told by agency that he would be eligible for rehire in one year's time if he successfully completed abuse program. While he successfully completed program, when he re-applied, agency told him that he "couldn't come back ... because [he] failed the [Employee Assistance] program that got [him] fired in the first place, and [the Agency doesn't] have revolving doors." Plaintiff also presented evidence that position was not safety-sensitive, that agency stated shifting reasons for failure to hire, and that avowed legitimate non-discriminatory reason (lack of honesty in job application) was rebutted by evidence that response was accurate and that agency never gave this reason at the time of the termination. District court further erred by enforcing too strict a definition of the "substantially limited"; plaintiff and expert established condition "dramatically [a]ffects major life activities, including the ability to care for himself, walking, concentrating, and communicating," Judgment cannot be affirmed on alternative ground of limitations. Court does not decide whether correct borrowed limitations period is three-year period for personal injury or one-year period under local Human Rights Act. Even if the shorter period, that was tolled by filing of timely charge with local agency.

Morris v. McCarthy, 825 F.3d 658, 129 FEP 395 (D.C. Cir. 2016). Panel: MILLETT, Tatel, Edwards. Claims on Appeal: 1. Title VII suspension (race). 2. Title VII retaliation. 3. Title VII termination (race). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Dismissal for failure to state a claim, FRCP12(b)(6) [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Affirmed [defendant]. 3. Affirmed [defendant]. Grounds: 1. Genuine issues of material dispute about suspension. Jury could find that manager, while not the final decision maker, used upper-level executive as a "cat's paw" to carry out a racially-motivated, adverse action, and also that the reason proffered for the suspension was not worthy of belief. "We base this conclusion on evidence that [manager] Higginbotham harbored bias toward white employees, as well as on the weaknesses [plaintiff] identifies in EPA's explanation for the suspension." Higginbotham, identified as African-American, reportedly made a practice of referring to other employees in the agency disparagingly as "white women" and "white boys."witness testified that recalled that "around 2005 or 2006, Higginbotham said of Morris, '[T]he little white woman better stand in line . . . . [T]his EPA[;] we can whip her into shape.'" Slurs could not be swept aside as stale or stray remarks. "Even if such a statement carries less weight than one made at the time of the suspension, it is nonetheless probative evidence of a supervisor's discriminatory attitude, at least when it is targeted directly at the plaintiff or is one of a pattern of similar remarks." Plaintiff also presents factual disputes about the reasons for her suspension. "Morris, forbidden from responding to the allegations herself and finding her supervisor unwilling to step in, ultimately submitted a human resources complaint protesting her supervisor's handling of the incident and broader office policies, taking care not to reply directly to the employees who had made the accusations. She was then charged with insubordination for violating the order not to 'respond.' Viewed from this perspective, a reasonable jury could be 'quite suspicious' of the sincerity of Higginbotham's insubordination charge." Morris presented facts that Higginbotham's recommendation caused the suspension, despite that the upper-level supervisor supposedly investigated the matter independently: "A reasonable juror could determine that Higginbotham's report colored Spears's evaluation of the incident at hand. That report contained subjective observations that Morris had 'difficulty getting along with others,' was not 'appropriately diplomatic,' and had 'acrimon[ious]' interactions with colleagues. J.A. 360-61. Spears's suspension decision repeatedly referenced Higginbotham's report, and in fact expressly agreed with a portion of her assessment that considered subjective factors." 2. Insufficient evidence that the decision maker was aware that employees sought EEO counselling. 3. Plaintiff did not wait a full 120 days after refiling her matter before the Merit Systems Protection Board (MSPB), an agency that adjudicates federal employment disputes. She tried arguing that more than 120 days had passed since she originally filed her claim there with no "judicially reviewable action," 5 U.S.C. § 7702(e)(1)(B), thus permitting her to file in federal court. But the Court holds that much of that time did not count because plaintiff had, in the interim, submitted to a dismissal without prejudice while the OSC investigation of her whistleblowing complaint continued.

Chambers v. Burwell, 824 F.3d 141, 129 FEP 171 (D.C. Cir. 2016). Panel: GRIFFITH, Srinivasan, Silberman. Claims on Appeal: Title VII (race) and ADA promotion. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Denial of a requested pay or grade increase, even without a vacancy, could be a materially adverse employment action. Summary judgment affirmed on alternative ground that there was no evidence to infer discriminatory motive. Her supervisor had regularly sought to promote plaintiff and indeed had promoted her twice as often as other employees on his staff. "While she does point to three promotions that may have occurred through HHS's creation of tailor-made vacancies, the record shows that ... superiors exercised their own initiative in creating these GS-15 positions for department heads under their supervision.." Moreover, whatever the reason for management's decision not to create budget for a new position, it could not have been race or disability discrimination where the senior manager was "not aware that the requested position was designed to facilitate [plaintiff's] promotion."

Johnson v. Perez, 23 F.3d 701, 129 FEP 237 (D.C. Cir. 2016). Panel: PILLARD, Tatel, Williams. Claims on Appeal: Title VII termination (race). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee failed to demonstrate pretext where there was no evidence that he was treated more harshly than comparable employees engaged in alleged sub-par performance, the factual foundation of the decision was sound, and "[a]ll of the record evidence memorializing [supervisor]'s justifications for terminating Johnson is consistent." Declarations of colleagues not probative because they did not supervise plaintiff's work. Panel disaffirms suggestion that "a successful showing of pretext, without more, is necessarily inadequate to support an inference of unlawful racial discrimination. Panel criticizes suggestion that employee cannot oppose summary judgment with their own (or co-worker) declaration testimony ("determining whether a co-worker's specific and relevant, if uncorroborated, testimony is trustworthy is a credibility determination reserved for the jury").

Nurriddin v. Bolden, 818 F.3d 751 (D.C. Cir. 2016). Panel: Per curiam (Brown, Randolph) [WILKINS, dissenting in part]. Claims on Appeal: 1. Rehabilitation Act harassment and discrimination. 2. Title VII promotion (race). 3. Title VII pay (race). 4. Title VII termination (race). Disposition Below: 1. Dismissed for failure to state a claim, FRCP12(b)(6) [defendant]. 2. Summary judgment [defendant].  3. Summary judgment [defendant]. 4. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. 3. Affirmed [defendant]. 4. Affirmed [defendant]. Grounds: 1. Complaint establishes that plaintiff is not a qualified person with a disability, where factual allegations give rise to an inference that his impairment related only to his particular job. Not regarded-as disabled because allegations show that employer perceived him as being capable of working outside of his division. 2. Record does not establish that plaintiff was entitled to an accretion of duty promotion, absent a record showing the process, why it applies to his position, what his original duties were, or how they had evolved by the time he was denied a promotion. 3. Record supporting claim that his bonus was reduced for his advocacy efforts based on double-hearsay statement by co-worker, and no evidence about timing of alleged statement that plaintiff's EEO complaints were a "crock of s-h-i-t," as necessary to infer causation. Failure to receive performance award explained by plaintiff's absence from workplace for six months. No evidence of comparables. 4. Where employee last worked in 2000, then took leave for medical fitness reasons, new supervisors had no involvement in dispute and thus no causation. No evidence of pretext where agency needed to free up plaintiff's position for restructuring.

Wheeler v. Georgetown University Hosp., 812 F.3d 1109 (D.C. Cir. 2016). Panel: WILKINS, Henderson, Pillard. Claims on Appeal: Title VII termination (race). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Plaintiff presented a genuine dispute of material fact on pretext by use of comparative evidence under the McDonnell Douglas rubric. The other nurses who committed misconduct and were not fired were in the same unit, and managed by the same individuals. For five of the six putative comparators, "there is at least a dispute of fact as to whether other nurses also subject to supervision and discipline by [supervisors] Hollandsworth, Howell, as clinical director, or GUH Human Resources should be viewed as similarly situated to Wheeler in this respect." Plaintiff also presented a genuine dispute about whether the other nurses' violations were of "comparable seriousness." Court notes that "[i]n order to be considered similarly situated, it is not necessary that the comparators engaged in the exact same offense." Plaintiff obtained testimony from the Hospital's corporate representative that even one act of "gross misconduct" could lead to termination by the Hospital without prior discipline, and each of the comparators were written up for gross misconduct. Some of the comparators, like Wheeler, even had prior write-ups in their file." In particular, the panel observes that - in discovery - the hospital identified a list of other nurses disciplined by Nurse Hollandsworth, none of whom were white. The jury could thus conclude that Nurse Hollandsworth "had a history of only disciplining non-white nurses, and the Hospital did not terminate any of the white nurses who allegedly committed the same class of infraction as Wheeler." In sum, the panel concludes that there was enough evidence to allow "a rational and reasonable jury [to] find these [non-Black] nurses" who were not terminated "to be comparable to Nurse Wheeler."

Minter v. District of Columbia, 809 F.3d 66, 32 A.D. Cases 725 (D.C. Cir. 2015). Panel: GARLAND, Rogers, Edwards. Claims on Appeal: 1. AD and Rehabilitation Act reasonable accommodation. 2. AD and Rehabilitation Act retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. No genuine dispute of material fact that employer sought more information to accommodate plaintiff on her first request, and had not refused to accommodate her. By the time of her second request, employee did not present genuine issue that she was a "qualified individual" - she had not performed a single day of work in more than three months and doctor's certificate state she was "Totally Disabled." 2. No genuine dispute that plaintiff was terminated for effectively abandoning her job by failing to report to work for four months and failing to provide medical documentation supporting her absence. Asserted shifting rationale did not create a genuine dispute about pretext, as deposition testimony offered only on, non-exclusive reason for termination, and nothing in such a minor inconsistency (if any) supports an inference that retaliation was the actual motive.

Burley v. Nat'l Passenger RR Corp., 801 F.3d 290, 128 FEP 1 (D.C. Cir. 2015). Panel: PILLARD, Tatel, Kavanaugh. Claims on Appeal: Title VII and DC law suspension (race). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Final decision maker on discipline not aware of plaintiff's race. While plaintiff's own firsthand observations of relevant facts (whether safety signal was disregarded) are probative evidence, plausibility of differing observations and inferences is not, without more, grounds on which a reasonable jury could conclude that plaintiff's direct supervisor (who reported alleged infraction) was so far off base as to suggest that he acted with a racial motive. Alleged intentional failure to disclose a mitigating fact about derailment in his investigative report and testimony (about crew member leaving train unannounced) not probative where it is not shown that investigator was aware of fact. Investigation was not so deficient to suggest bias, especially where steps that investigator might have taken (viewing video) not shown to have likely changed outcome. Alleged comparator evidence immaterial where there was no evidence decision makers were aware of race of employees; also, more lenient disciplinary treatment of white employees who violated rules does not support the inference of discrimination where white employees he identifies are not similarly situated to him (different roles and level of responsibility, different levels of seriousness to violations). High stakes of "blue signal" violation carried enhanced culpability.

Doak v. Johnson, 798 F.3d 1096, 31 A.D. Cases 1633 (D.C. Cir. 2015). Panel: MILLETT, Garland, Wilkins. 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. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Because plaintiff filed and received a final disposition of her administrative complaint, court had jurisdiction over claim; deadline for contacting an EEO counselor not jurisdictional. Alleged failure to cooperate with its investigation also not jurisdictional. Plaintiff was not a qualified individual able to perform her job duties even with reasonable accommodations. She suffered from hypothyroidism, depression, and symptoms from head trauma (headaches, memory loss, sleep disorders), plus side effects from medication. While request to change her work hours to an 11:00 a.m. start time, with optional weekend hours and the ability to telecommute, was not inherently unreasonable, even with her desired schedule accommodation, plaintiff would have been unable to perform an essential function of her job: being present in the office to participate in interactive, on-site meetings during normal business hours and on a regular basis. Plaintiff had proven unable to arrive even as late as 9:00 in the morning on a regular basis, and 8:15 a.m. start time was already the latest start time on her team. Migraines also incapacitated plaintiff regardless of time of day. Single, conclusory sentence in declaration that "an 11:00 a.m. start time would not have interfered with my ability to do my job because there were few project interactions" did not create a genuine dispute. 2. Plaintiff did not create genuine dispute about agency's legitimate, non-discriminatory reason for terminating plaintiff, i.e., her inability to maintain a regular schedule and presence in the workplace, and her frequent and unpredictable absences without leave. Temporal link by itself insufficient. Although attendance was improving near end, unscheduled absences increased a couple of pay periods after warning, and transitory increase in attendance still fell short of what her job requires.

Walker v. Johnson, 798 F.3d 1085, 127 FEP 1532 (D.C. Cir. 2015). Panel: PILLARD, Millett, Sentelle. Claims on Appeal: Title VII promotion (race) and retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: No genuine dispute over legitimate, non-discriminatory and non-retaliatory reasons for reprimand failure to promote, i.e., attendance and failure to follow leave policy. Drop in rating from fully successful" to "achieving expectations" properly attributed to change in rating system. Nothing in the record suggesting that decision maker did not genuinely and reasonably believe he made the right decision in the performance rating. No shifting explanations; at most only minor variations in the descriptions of plaintiff's performance. Plaintiff offers only speculation based on vague email about whether her name was referred for promotion. In dicta, panel notes that the failure to grant increase in performance rating can constitute adverse action, and that even if disciplinary actions against employee were directed by committee, agency could still be liable under cat's paw theory.

Shea v. Kerry, 796 F.3d 42, 127 FEP 1507 (D.C. Cir. 2015). Panel: SRINIVASAN, Rogers [WILLIAMS, concurring]. Claims on Appeal: Title VII pay (reverse race). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Agency's affirmative action plans for Foreign Service Officer corps meet standards of Title VII. Plaintiff had standing because he alleged that 1990-92 Plan denied him the opportunity to compete on an equal basis by extending a preference to minority candidates that was unavailable to him: the ability to gain consideration for entry to a mid-level position without any certificate of need. Analysis on merits continues to be governed by United Steelworkers of America, AFLCIO-CLC v. Weber, 443 U.S. 193 (1979), and Johnson v. Transportation Agency, Santa Clara County, California, 480 U.S. 616 (1987). Ricci v. DeStefano, 557 U.S. 557 (2009), did not displace these cases. Note in dicta that doctrine that proffer of legitimate, non-discriminatory reason shortcuts need to reassess prima facie case may not apply to reverse-discrimination cases. Agency forfeited argument that there was no adverse action, in any case, by not raising it until appeal. On burden of production, agency established evidence of a manifest imbalance in a traditionally segregated job category (1989 GAO Report and the findings contained in the 1990-92 Plan, as applied to more senior-level positions); also that substantial imbalances at the SFS level themselves indicate that discriminatory practices may well have been afoot (extreme statistical disparities, testimony indicating overt racial discrimination dating back as far as the 1960s). Agency also showed that plan did not unnecessarily trammels the rights of non-beneficiaries (non-minority applicants), because only difference came in the form of the certificate-of-need waiver at the threshold that compensated for historic lag in hiring. Evidence also indicated that agency turned to the 1990-92 Plan's race-conscious measures only after race-neutral efforts failed to bear fruit. Plaintiff failed to rebut this proffer with admissible evidence of invalidity of plan; district court rejected every piece of statistical evidence proffered by plaintiff as inadmissible and plaintiff does not appeal those findings.

Maggio v. Wisconsin Ave. Psychiatric Center, 795 F.3d 57, 127 FEP 1265 (D.C. Cir. 2015). Panel: RANDOLPH, Sentelle [ROGERS, dissenting]. Claims on Appeal: Title VII termination (sex). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Where plaintiff gave EEOC a DC home address, did not direct agency to communicate with counsel, and never informed the agency that he was living in South Carolina, he violated his duty to notify the EEOC "of any change in address and . . . any prolonged absence from that current address so that he or she can be located when necessary during the Commission's consideration of the charge" (29 C.F.R. § 1601.7(b)). No equitable tolling based on erroneous belief that EEOC would send right-to-sue to his lawyer.

Allen v. Johnson, 795 F.3d 34, 127 FEP 1283 (D.C. Cir. 2015). Panel: PILLARD, Rogers, Kavanaugh. Claims on Appeal: Title VII retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Plaintiff's disagreement with manager about discretionary judgments concerning the employee's evaluation and meeting participation present no issue of pretext under Title VII. Performance plan laid out expectation that plaintiff collaborate with the finance center, and plaintiff did not dispute that finance center complained about lack of cooperation. No evidence of dishonest or unreasonable ranking of employee. Plaintiff also criticized for delays in the administration of an internal financial control test; no evidence to conclude that manager exceeded authority in expanding project to include test. On another performance goal, oversight of finance centers during a project, plaintiff had two-month advance notice that her office was behind in getting documents to carry out project. Mid-year review not carried out due to failure to finalize performance plan. Argument that plaintiff was barred from meetings relies on inadmissible hearsay from contractors. Plaintiff does not assert that manager lied about the content of the meetings or covered up what happened during them, or that manager did not honestly and reasonably believe that she acted appropriately in not inviting plaintiff to participate. No evidence of shifting explanations. Moreover, adverse actions occurred nine months after the settlement of plaintiff's earlier claims.

Giles v. Transit Employees Federal Credit Union, 794 F.3d 1, 31 A.D. Cases 1450 (D.C. Cir. 2015). Panel: BROWN, Srinivasan, Wilkins. Claims on Appeal: AD and D.C. law termination. ERISA claim (not discussed). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: No genuine issue of material fact on pretext. Employer produced evidence that employee was poor performer (altercations with customers, improperly indexing work and incorrectly recording documents). This assessment is not rebutted by positive evaluation that was not inconsistent with perceived performance issues. Co-worker declaration about the quality of plaintiff's work immaterial because it does not reflect on managers' belief or state of mind. Even if plaintiff could present a genuine issue about whether she was responsible for mistake, no evidence suggesting managers did not think the error occurred, plaintiff was responsible, or that it was not significant. While there was evidence of shifting explanations (cost-cutting, then performance), there was no evidence from which a reasonable jury could conclude that the employer's asserted reason is not the real reason she was terminated. Moreover, record does not permit an inference that the cost of insuring plaintiff was a motivating factor in the decision to terminate her: no evidence that the employer knew about her medical reimbursements, or that her treatment would have any effect on the employer's premium. Also no temporal connection between plaintiff's health condition and termination. That scanning duties were assumed by temporary employees-who were not eligible to enroll in health insurance-dose not support an inference that she was terminated her as part of a plan to cut insurance expenses, where other similarly situated employees were also terminated.

Harrison v. Office of the Architect of the Capitol, 793 F.3d 119 (D.C. Cir. 2015). Panel: Per curiam [Tatel, Brown, Millett]. Claims on Appeal: Congressional Accountability Act harassment (sex). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: District court did not err by applying Title VII case law in analyzing claim of discrimination under the CAA.

Baird v. Gotbaum, 792 F.3d 166, 127 FEP 961 (D.C. Cir. 2015). Panel: HENDERSON, Williams, Randolph. Claims on Appeal: Title VII retaliation. Disposition Below: Dismissed for failure to state a claim, FRCP12(b)(6) [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Alleged failure of agency to remediate alleged acts of harassment did not state a claim, where underlying incidents were too trivial and sporadic to warrant investigation. Although employee alleged that she was subjectively harmed by agency's failure to investigate, allegations do not survive the objective test.

Harris v. District of Columbia Water and Sewer Auth, No791 F.3d 65, 127 FEP 821 (D.C. Cir. 2015). Panel: GARLAND, Tatel, Srinivasan. Claims on Appeal: Title VII and §1981 retaliation. Disposition Below: Dismissed for failure to state a claim, FRCP12(b)(6) [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Allegation that plaintiff had a good performance record and was fired for a false reason (that his position was abolished), and that the employee was not permitted to apply for vacancies, five months after writing mayor about alleged race discrimination, stated claim for retaliation. Although plaintiff also alleged need for medical leave, that allegation alone did not plead employee out of court.

Brink v. Continental Ins. Co., 787 F.3d 1120, 31 A.D. Cases 1161 (D.C. Cir. 2015). Panel: SENTELLE, Garland, Brown. Claims on Appeal: ADA reasonable accommodation. Disposition Below: Fed. R. Civ. P. 15(a)(2) relief denied [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Court abused discretion in denying leave to amend complaint to add ADA claims, where plaintiffs asserted plausible claims that their severe injuries could interfere with major life activities and that reassignment from overseas to doing translation work in the United States would be a "reasonable accommodation."

Coleman-Lee v. District of Columbia, 788 F.3d 296, 31 A.D. Cases 1055 (D.C. Cir. 2015). Panel: Per curiam (Griffith, Edwards, Silberman). Claims on Appeal: ADA termination. Disposition Below: Judgment after a jury trial [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: No plain error in instructing jury that mitigating measures could be considered in connection with whether employee was "disabled."

Rattigan v. Holder, 775 F.3d 430, 125 FEP 1127 (D.C. Cir. 2015). Panel: WILLIAMS, Garland, Kavanaugh. Claims on Appeal: Title VII retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: No genuine dispute of material fact over causation, where supervisor who prepared derogatory memo was neither a target nor aware of plaintiff's protected activity, and there is no evidence of knowing falsity that might imply an improper purpose. Denial of leave to take addition al discovery after three failed attempts not an abuse of discretion.

Megginson v. Pritzker, 775 F.3d 430, 125 FEP 1127 (D.C. Cir. 2015). Panel: ROGERS, Brown, Edward. Claims on Appeal: Title VII discrimination. Disposition Below: Dismissed for failure to state a claim, FRCP12(b)(6) [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: 28 U.S.C. § 2401(b) limitations periods for claims against the United States do not apply to Title VII claims.

Brown v. Sessoms, 774 F.3d 1016, 125 FEP 889 (D.C. Cir. 2014). Panel:  HENDERSON, Srinivasan, Williams. Claims on Appeal: § 1981 promotion. D.C. tort and contract claims (not discussed here). Disposition Below: Dismissed for failure to state a claim, FRCP12(b)(6) [defendant]. Outcome on Appeal: Reversed [plaintiff]. Outcome on Appeal: Although plaintiff alleged as § 1981, defendants were state actors and thus (under Jett) the exclusive remedy was § 1983. Nonetheless, the failure to cite § 1983 in the complaint is not dispositive. Plaintiff stated a claim for race discrimination by showing that white applicant for tenure benefitted by "less stringent tenure criteria" than she, i.e., neither plaintiff nor comparator had requisite number of publications.

Hairston v. Vance-Cooks, 773 F.3d 266, 125 FEP 912 (D.C. Cir. 2014). Panel: HENDERSON, Ginsburg, Sentelle. Claims on Appeal: 1. Title VII promotion (race). 2. Title VII retaliation (race). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. No evidence that reason for denial of promotion (insufficient experience) was pretextual. One party's failure to recall part of their side of a conversation, and provided more information in a deposition than a prior affidavit, did not create an inference of pretext. Process that failed to follow-up comprehensively on credentials does not rebut genuineness of reasons. Delay in awarding promotion did not rebut record that increase in demand for passports required that position be filled promptly. Supposed record of racial hostility, such as patronizing (though not racial) comments, does not shed light on the reasons for individual decision in this case. 2. Record was uncontested that person who denied training opportunity to plaintiff was unaware of her protected activity.

Barkley v. U.S. Marshals Service, 766 F.3d 25, 30 A.D. Cases 963 (D.C. Cir. 2014). Panel: SRINIVASAN, Rogers, Millett. Claims on Appeal: Rehabilitation Act termination. Due process (not discussed here). Disposition Below: Judgment on the pleadings [defendant]. Outcome on Appeal: Reversed in part[defendant]. Grounds: No individual class member exhausted administrative procedure for a class complaint, so no vicarious exhaustion. But district court abused its discretion in denying leave to amend complaint to add further plaintiffs' claims under Rehabilitation Act and ADA.

Solomon v. Vilsack, 763 F.3d 1, 30 A.D. Cases 649 (D.C. Cir. 2014). Panel: MILLETT, Henderson, Ginsburg. 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. Reversed [plaintiff]. Grounds: 1. Employee requests flexible work schedule to assist with treatment of chronic depression, anxiety and insomnia. Because of resistance from her supervisors about her schedule, she filed a complaint of discrimination with the agency. In particular, supervisors forbade her from working late to complete projects and wrote her up as absent without leave, until she produced medical documentation to their satisfaction. Plaintiff took permanent disability leave. Genuine disputes of material fact about whether regular attendance was an essential function and that a "maxiflex" schedule was, inherently, not a reasonable request. Reasonableness of a flexible schedule is factual - not a legal - question. In this case, the federal government has published guidelines for maxiflex schedules through the Office of Personnel Management, permitting 80 hours to be worked over fewer than 10 workdays. Moreover, there was a sufficient basis for a fact-finder to conclude that a flexible work schedule would have accommodated plaintiff's disability. Indeed, she had informally operated on such a schedule on the sufferance of her regular supervisor, and met every work deadline. "While the Secretary argues (Br. 43) that Solomon's job involves 'tight, unpredictable, and firm deadlines,' Solomon answered with evidence that short deadlines are infrequent and, when they arise, can be met with a maxiflex schedule." 2. Agency "waived waiver" argument that employee did not plead and brief retaliation in district court. Genuine dispute of material fact about whether revocation of permission to work late as retaliation for filing EEO complaint 11 days earlier or for making requests for work-schedule accommodation. Act of requesting in good faith a reasonable accommodation is itself a protected activity under 42 U.S.C. § 12203, which is incorporated into the Rehabilitation Act, per 29 U.S.C. § 791(g). But summary judgment affirmed on removal of privacy curtain at plaintiff's desk, where employee did not furnish evidence of pretext for agency's reason (safety concerns).

Ward v. McDonald, 762 F.3d 24, 30 A.D. Cases 689 (D.C. Cir. 2014). Panel: HENDERSON, Randolph [MILLETT, dissenting] Claims on Appeal: 1. Rehabilitation Act reasonable accommodation. 2. Rehabilitation Act constructive discharge. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant].Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. No genuine dispute of material fact that interactive process broke down because employee, instead of providing written response to agency's requests for information about employee's needs (chronic lymphodema), employee quit six days later. 2. Employee's conditions were not intolerable, where she broke off of negotiations before completed.

Mulrain v. Castro, 760 F.3d 77, 123 FEP 1591 (D.C. Cir. 2014). Panel: GRIFFITH, Kavanaugh, Pillard. Claims on Appeal: Title VII reassignment (race). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Where decision-maker was unaware that plaintiff applied for position, there can be no inference of discrimination.

In re Johnson, 760 F.3d 66, 123 FEP 1583 (D.C. Cir. 2014). Panel: GINSBURG, Garland, Wilkins. Claims on Appeal: Title VII promotion (race). Disposition Below: Class certification [plaintiff]. Outcome on Appeal: FRCP23(f) petition rejected [plaintiff]. Grounds: No manifest error in court certifying class of some 120 black Secret Service agents for denial of promotions. Plaintiffs allege both that the Secret Service engaged in a pattern or practice of racial discrimination in making promotions and that the MPP had a disparate impact upon African-American Special Agents seeking promotions. No novel questions presented. No manifest error on various issues. (1) Commonality: under the promotion policy here at issue, every class member was evaluated upon the same criteria scored using the same numerical system. Furthermore, every promotion decision was ultimately made by the Director of the Secret Service. Although different decision makers no doubt injected some subjectivity into the evaluations of different class members, that is not sufficient to make a finding in plaintiffs' favor manifest error. (2) Adequacy: If class members functioning as reviewers neutrally applied a flawed rating system and thereby reached a discriminatory result, then they were not themselves discriminating and therefore have no apparent interest that is in conflict with the attempt to prove other agents were denied promotions because of their race. (3) Predominance: court could certify class for deciding liability only and granting injunctive relief but with respect to damages reserving for later decision about certifying the class under 23(b)(3) and conducting Teamsters hearings. (4) Superiority: not manifestly erroneous for district court to hold that argument that class members had individual incentive to seek individual relief was outweighed by court's and plaintiffs' interests in efficiency and uniformity.

Wilson v. Cox, 753 F.3d 244, 123 FEP 1 (D.C. Cir. 2014). Panel: SRINIVASAN, Kavanaugh, Edwards. Claims on Appeal: ADEA termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Comments by decision maker that made negative generalizations about older residents who earned income as security guards ("you didn't come here to work, you came here to retire"; "that they were not doing their jobs properly, as from time to time they would be found asleep, which was not safe for a government agency in DC, what with all the threats since 9/11.") constituted direct evidence of motive. Thus no need at summary judgment stage to evaluate whether employer had other, non-discriminatory reasons.

Foote v. Moniz, 751 F.3d 656, 122 FEP 1421 (D.C. Cir. 2014). Panel: KAVANAUGH, Pillard, Williams. Claims on Appeal: Title VII hiring (race). Disposition Below: Dismissed [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Under Dep't of the Navy v. Egan, 484 U.S. 518 (1988), plaintiff barred from challenging Department of Energy's psychological examination (Human Reliability Program), where (1) examination was used to determine security clearance and (2) doctor who administered test was qualified, trained and authorize to make fitness determination.

Brooks v. Grundmann, 748 F.3d 1273, 122 FEP 661 (D.C. Cir. 2014). Panel: BROWN, Srinivasan, Williams. Claims on Appeal: 1. Title VII harassment (race, sex). 2. Title VII retaliation (race, sex). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Behavior (yelling, selective enforcement of rules, criticisms of performance) not severe or pervasive. 2. Plaintiff waived discrete-acts theory (recasting same acts as retaliatory) by failing to plead it or to move to amend her complaint to add it.

Koch v. White, 744 F.3d 162, 29 A.D. Cases 445 (D.C. Cir. 2014). Panel: RANDOLPH, Tatel, Srinivasan. Claims on Appeal: Rehabilitation Act reasonable accommodations. Disposition Below: Summar judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: District court was within its discretion to dismiss the case on the ground that the employee failed to exhaust his administrative remedies. There is not "good faith" defense to failing to cooperate in an investigation on privacy grounds, even if the agency uses an outside agency to investigate the claim.

Franklin-Mason v. Mabus, 742 F.3d 1051, 121 FEP 1363 (D.C. Cir. 2014). Panel: BROWN, Kavanaugh, Williams. Claims on Appeal: Title VII settlement. Disposition Below: Dismissal for lack of jurisdiction, FRCP12(b)(1) [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Settlement of Title VII claim embodied in a consent decree is a contract under the Tucker Act, which must be filed in the Court of Federal Claims. Federal government's sovereign immunity not waived regarding Title VII settlements.

Schlottman v. Perez, 739 F.3d 21, 121 FEP 295 (D.C. Cir. 2014). Panel: TATEL, Williams, Randolph. Claims on Appeal: Title VII retaliation. Disposition Below: Dismissed for failure to state a claim, FRCP12(b)(6) [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Plaintiff's late-filed claim not covered by savings clause of 5 U.S.C. § 7702(f); complainant filed with wrong agency (MSPB), and filing was untimely under rules of the correct agency (more than 15 days after receipt of right-to-sue notice from employing agency, DOL).

In re Navy Chaplaincy, 738 F.3d 425, 121 FEP 314 (D.C. Cir. 2013). Panel: WILLIAMS, Tatel, Kavanaugh. Claims on Appeal: First Amendment Establishment Clause promotion. Disposition Below: Preliminary injunction denied  [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Statistical analysis of selection board promotion process that revealed a disparity of 73.3% to 83.3% disfavoring non-liturgical Christians, which did not control for seniority or other factors, insufficient - in the absence of other evidence of intentional discrimination - to support preliminary injunctive relief.

Hernandez v. Pritzker, ___ F.3d ___, 121 FEP 323 (D.C. Cir. 2013). Panel: GINSBURG, Garland, Sentelle. Claims on Appeal: Title VII retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: No pretext to agency's explanation that employee was transferred on her own request (and record that putatively more advantageous positions were available was based on inadmissible hearsay). With respect to change of probationary status, evidence established that decision was consistent with 5 D.F.R. § 315.801(a), and exemption for reinstated employees did not apply to her. No pretext to agency's reason for termination ("failure to demonstrate acceptable performance during [the] probationary period").

Cook v. Billington, 721 F.3d 661 (D.C. Cir. 2013). Panel: KAVANAUGH, Tatel, Sentelle. Claims on Appeal: Title VII retaliation. Disposition Below: Dismissal for failure to state a claim, FRCP 12(b)(6) [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: While individual employees had Art. III standing (and "zone of interests" under Thompson v. No. Am. Stainless) because Library of Congress refused to recognize employee organization devoted to supporting employees with race discrimination complaints, court holds that complaint fails to state a claim because employees had not alleged that they engaged in protected activity.

Bridgeforth v. Jewell, 721 F.3d 661 (D.C. Cir. 2013). Panel: GRIFFITH, Brown [HENDERSON, concurring]. Claims on Appeal: Title VII retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Failure to nominate civil servant for time-off award for exceptional performance not materially adverse action.

Howard v. Office of the Chief administrative Office of the United States House of Representatives, 720 F.3d 939, 118 FEP 1796 (D.C. Cir. 2013). Panel: EDWARDS, Garland [KAVANAUGH, dissenting]. Claims on Appeal: Title VII demotion and termination (race), and retaliation. Disposition Below: Dismissal for lack of subject matter jurisdiction or failure to state a claim, FRCP 12(b)(1) and (6) [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Congressional office cannot immunize itself from liability by claiming (by way of affidavit) that the employee was treated adversely because of the performance of legislative duties. In this case, employee could prove claim neither related to legislative acts, nor would court be required to inquire into legislative motives or question conduct integral to the legislative process. While employer contends that employee and poor interpersonal skills that made it difficult to effectively support legislative activities, employee can rebut with evidence other than a direct challenge to the veracity of complaint (for instance, by arguing shifting explanations). Claim of insubordination could be rebutted, without implicating legislative activity; employee would argue that she was assigned a task that the employer knew she lacked to tools to perform.

Primas v. District of Columbia, 719 F.3d 693, 118 FEP 1645 (D.C. Cir. 2013). Panel: TATEL, Kavanaugh, Sentelle. Claims on Appeal: Title VII demotion (race, sex). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Employee presented genuine of dispute of material fact by evidence that after she rejected two-level demotion during reorganization, white male was hired into same position, but elevated to a higher rank.

West v. Potter, 717 F.3d 1030, 118 FEP 1661 (D.C. Cir. 2013). Panel: SENTELLE, Tatel [WILLIAMS, concurring]. Claims on Appeal: Title VII discrimination, retaliation and harassment. Disposition Below: Attorney's fees for delay of payment denied [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Denial of enhancement of fees to compensate for delay of payment legal error: while length of delay or fault of defendant (due to dilatory tactics) are relevant factors, there are not mandatory conditions

Evans v. Sebelius, 716 F.3d 617, 118 FEP 783 (D.C. Cir. 2013). Panel: TATEL, Sentelle [WILLIAMS, concurring]. Claims on Appeal: 1. Title VII promotion (race). 2. title VII promotion (race). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Affirmed [defendant]. Grounds: 1. Plaintiff established her prima facie case of discrimination (i.e., that she was qualified for the position, not promoted, and there was evidence that others who were not African-American were treated more favorable). Agency defended the decision by arguing that the position was cancelled and no one was hired. The panel, though, holds that the agency's explanation was equivocal: the government has given shifting reasons for the non-promotion (employee testified that she was told she would be promoted once the hiring freeze was lifted, only to learn later that the position had been administratively cancelled after the hiring freeze ended, and record indicates that the relevant decision-makers have taken different views on who precisely cancelled the position." There was also evidence of racially-biased comments as well, lending support to the inference of race discrimination: decision maker said to "frequently refer[] to the African American women on staff as 'those sisters.' . . . . And in her declaration, [the same witness] recounts an incident in which [supervisor] McCormick implied that people from 'the Hood' are liars and cheaters. After [the witness] and McCormick got into an argument over these comments, McCormick tried to explain her behavior by stating: 'I'm a hot-blooded Italian and I get angry sometimes.'" 2. No evidence that decision maker was aware of the employee's race.

Barnett v. PA Consulting Group, Inc., 715 F.3d 354, 118 FEP 456 (D.C. Cir. 2013). Panel: GRIFFITH, Edwards, Sentelle. Claims on Appeal: ADE and Title VII (sex) termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Genuine dispute of material fact where (1) female plaintiff was 57 and other employee who was not fired was male and age 41; (2) other employee was also scored low on "fit" in reorganized unit; (3) male employee was given option to split salary 50-50 with another unit, not offered to plaintiff; (4) although employer defended that male employee took a pay cut, record evidence shows that his salary was not reduced; (5) equivocal evidence whether male had relevant experience; (6) decision maker denied in testimony that profitability was a factor in decision; (7) spreadsheet of termination candidates included ages of employees and management witnesses could not recall why.

Ayissi-Etoh v. Fannie Mae, 712 F.3d 572, 117 FEP 1551 (D.C. Cir. 2013). Panel: Per curiam [Garland, Griffith] [KAVANAUGH, concurring]. Claims on Appeal: 1. § 1981 discrimination (race). 2. § 1981 harassment (race). 3. § 1981 retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Reversed [plaintiff]. 3. Reversed [plaintiff]. Grounds: 1. Triable issue of fact whether manager explicitly denied employee a raise, stating that "For a young black man smart like you, we are happy to have your expertise; I think I'm already paying you a lot of money." 2. Triable issue of fact that employee was subjected to severe or pervasive harassment. Manager used a deeply offensive racial epithet (n-word) when yelling at employee to get out of the office. Single incident might well have been sufficient to establish a hostile work environment. This incident was also preceded by "young black man" This incident was followed by plaintiff allegedly having to continue working with manager who used n-word for nearly three months, until manager was ultimately fired. 3. Employee offers direct evidence of retaliation: he testified that manager gave him a choice between dropping his claims with the EEOC and being fired.

Grosdidier v. Broadcasting Bd. of Gov's, 709 F.3d 19, 117 FEP 946 (D.C. Cir. 2013). Panel: ROGERS, Henderson, Sentelle. Claims on Appeal: 1. Title VII retaliation. 2. Title VII promotion (national origin, sex, race). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. No protected activity in complaining about co-worker's behavior, where no reasonable employee could have believed that sharing of sexually-suggestive pictures and kissing in office was hostile work environment. 2. Employee did not establish that she was significantly better than candidate who got promotion; both had experience in different fields and neither stood out enough to judge decision based on relative credentials. That job description was redrafted to emphasize experience possessed by successful candidate was not shown to be done deliberately to favor candidate. No evidence that panelists misapplied qualifications, even if they were hazy in deposition about their exact rationale. Panelists who destroyed notes did not comply with their duties under 29 C.F.R. § 1602.14, and it was error for district court not to grant evidentiary inference (circuit holds that no bad-faith motive is required for inference), but denial of inference was harmless error where balance of evidence precluded finding that destroyed evidence would have established pretext.

Caudle v. District of Columbia, 707 F.3d 354, 117 FEP 525 (D.C. Cir. 2013). Panel: HENDERSON, Rogers, Sentelle. Claims on Appeal: Title VII discrimination (race) and retaliation. Disposition Below: Judgment after a jury trial ($900,000 compensatory damages, back pay, interest) [plaintiff]. Outcome on Appeal: Reversed [defendant]. Grounds: Four improper statements in closing argument by plaintiffs' counsel (three Golden Rule and one "send-a-message") unfairly prejudiced defendant and required new trial. Argument is equally improper regarding liability and damages (noting split in circuits). Judge's curative statement insufficient to mitigate prejudice.

Dyson v. District of Columbia, 707 F.3d 354, 117 FEP 525 (D.C. Cir. 2013). Panel: EDWARDS, Henderson, Griffith. Claims on Appeal: Title VII harassment (sex). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Plaintiff filed a charge more than 300 days from harassing events; she had previously filed an Intake Questionnaire (216 days after the harassment ended) that informed her of limitations periods. District court did not err in finding that equitable tolling does not apply. Employee was not diligent, as she was aware several months ahead of time of limitations period and failed to file. That EEOC was slow to produce and return form charge does not provide extraordinary circumstances, because employee knew about deadlines and did not follow up with agency.

In re Navy Chaplancy, 697 F.3d 1171, 116 FEP 609 (D.C. Cir. 2012). Panel: TATEL, Henderson, Rogers.Claims on Appeal: Equal protection promotion (religion). Disposition Below: Preliminary injunction denied [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Clergy who challenged promotion policies for non-liturgical Christian chaplains had Article III standing to challenge disputed, continuing policies said to discriminate (taking of secret votes, small size of selection boards, presiding member from a different denomination). While Navy challenges whether those policies result in discrimination, that is a merits-based determination separate from the issue of standing. In denying preliminary injunction on the grounds of likelihood of success on the merits, district court erred in not considering or making findings on plaintiffs' statistical showing of past discrimination in support of the probability of future injury.

Miller v. Clinton, 687 F.3d 1332, 115 FEP 1157 (D.C. Cir.  2012). Panel: GARLAND, Rogers [KAVANAUGH, dissenting].Claims on Appeal: ADEA termination. Disposition Below: Dismissal for failure to state a claim, FRCP 12(b)(6) [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Basic Authorities Act, 22 U.S.C. § 2669(c), governing State Department's authority to employee individuals in other countries, does not supercede federal-sector ADEA, 29 U.S.C. § 633a.

Youssef v. FBI, 687 F.3d 397, 115 FEP 974 (D.C. Cir. 2012). Panel: GRIFFITH, Williams, Randolph. Claims on Appeal: 1. Title VII demotion [national origin]. 2. Title VII discrimination [national origin]. Disposition Below: 1. Summary judgment [defendant]. 2. Judgment after a jury trial [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Affirmed [defendant]. Grounds: 1. Seventh-month downgrade to less challenging work, and denial of leave from current engagement were arguably materially adverse employment actions under Title VII. 2. Jury could have found that denial of permission to participate in office inspections was not materially adverse.

Hampton v. Vilsack, 685 F.3d 1096, 115 FEP 854 (D.C. Cir. 2012). Panel: HENDERSON, Tatel, Randolph. Claims on Appeal: Title VII termination (race). Disposition Below: Summary judgment [defendant]. Outcome on Appeal:Affirmed [defendant]. Grounds: Assuming that a subordinate had a racial reason for reporting a violation of a work rule (i.e., overstating travel expenses), agency was not liable where superior conducted an entirely new review of the evidence, sent some parts of the investigation back and removed underdeveloped claims of theft from report.

Rattigan v. Holder, 689 F.3d 764, 115 FEP 858 (D.C. Cir. 2012). Panel: TATEL, Rogers [KAVANAUGH, dissenting]. Claims on Appeal: Title VII retaliation. Disposition Below: Judgment after a jury trial [plaintiff]. Outcome on Appeal: Reversed  [defendant]. Grounds: On rehearing from 643 F.3d 975, 112 FEP 600 (D.C. Cir. 2011). District court committed reversible error by allowing jury to consider validity of Security Division's decision to refer matter of employee's security clearance (by way of evidentiary rulings, jury instruction and verdict form). that decision is immunized on grounds of national security (Department of the Navy v. Egan, 484 U.S. 518 (1988)). Case remanded to evaluate whether the claim can be retried based on theory that plaintiff's supervisors in Office of International Operations of FBI - separate from the Security Division - supplied knowingly false information about employee. Such an action would dissuade a reasonable employee from complaining about discrimination because of the potential impact on his career (including termination), regardless of what action the Security Division takes. Court can take steps to assure that the jury does not weigh the Security Division's actual investigation or results.

Ponce v. Billington, 679 F.3d 840, 115 FEP 1 (D.C. Cir. 2012). Panel: TATEL,  Garland, Silberman. Claims on Appeal: Title VII promotion (national origin). Disposition Below: Judgment after a jury trial [defendant]. Outcome on Appeal:Affirmed [defendant]. Grounds: No error in jury charge that instructed that employee must prove national origin was but-for cause of denial of promotion. Federal-sector Title VII (42 U.S.C. § 2000e-16) tracks private-sector liability. Employee may proceed either by mixed-motive or single-motive theory; although plaintiff need not plead a particular theory, at some point employee must identify which theory or theories will be pursued (jury may be instructed on both). Judge erred in including language in instruction that for single-motive case employee must prove discrimination was the "sole factor," but charge overall made clear that standard was but-for, therefore no abuse of discretion. No error on not giving a mixed-motive instruction when, at time of trial, lawyer stated on record that he was only proceeding on "because of" (single-motive) theory. Exclusion of conclusions from report by the Personnel Appeals Board of the GAO, finding discrimination, not abuse of discretion where judge evaluated report and found the conclusions weak and unduly prejudicial under FRE403.

Kapche v. Holder, 677 F.3d 454 (D.C. Cir. 2012). Panel: HENDERSON, Garland, Brown. Claims on Appeal: Rehabilitation Act hiring. Disposition Below: Judgment after a jury trial ($100,000 compensatory damages) [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: Jury could find that plaintiff's Type 1 diabetes "substantially limits" major life activity of eating. Plaintiff takes insulin every time he eats, checks his blood sugar level three to five times daily, and must stay aware what he's eating and how much. Before eating anything, he must calculate the amount of carbohydrates he is about to ingest and adjust his insulin levels accordingly. And, while plaintiff can eat or drink whatever he wants, he must constantly monitor and adjust his insulin levels and food intake to keep his blood sugar level within a safe range. He must also adjust his insulin shots and food intake in response to exercise and illness because of their effect on his blood sugar level, eight or more times in a day. Supported by expert medical testimony. Expert witness did not offer impermissible legal conclusion when he testified about plaintiff's "severe limitations." Equitable relief or reinstatement/front pay properly denied based on after-acquired evidence defense. Defense was not waived by agency's original failure to plead as an affirmative defense in answer, where it was eventually plead in amended answer and employee was on notice. Employer met burden on defense that plaintiff's alleged lack of candor in background investigation (of theft) was basis not to re-hire, and established that it was the practice of the agency not to hire on this ground. Although there was evidence that two other employees charged with lack of candor were re-hired, neither had engaged in intentional misrepresentation. District court did err under FRCP 37(c)(1) by not excluding agency witness at equitable remedy stage, where despite omission of witness from mandatory disclosures, witness was made known to plaintiff during discovery. Back pay properly denied where district court credited expert testimony that plaintiff earned more money during back pay period than he would have with the promotion.

Gilbert v. Napolitano, 670 F.3d 258, 114 FEP 923 (D.C. Cir. 2012). Panel: TATEL, Henderson, Garland. Claims on Appeal:  1. Title VII (race) and ADEA promotion. 2. Title VII and ADEA retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal:1. Reversed [plaintiff]. 2. Affirmed [defendant]. Grounds: 1. Employer waived exhaustion defense on first promotion by not raising it as an affirmative defense in its answer FRCP 8(c). Claim remanded for further development on the merits. On second promotion, genuine issue of material fact presented where - against a defense that the agency chose the best-qualified candidate - manager who would have been the supervisor of the position and knew both of the candidates' work testified that the plaintiff was, on qualification and experience, superior to the younger white candidate who was selected. 2. First claim of protected activity, asking manager to treat him fairly in the future, was not opposition to unlawful activity. Second protected activity, filing a charge, occurred three years prior to denial of promotion. Arguing relative qualifications is immaterial where there was no dispute that decision-maker did not have full information about both candidates, and manager honestly believed that plaintiff had been engaged in misconduct ten years earlier. No probative evidence rebutting that a further position was withdrawn from consideration solely owing to a lack of a vacancy.

McGrath v. Clinton, 666 F.3d 1377, 114 FEP 392 (D.C. Cir. 2012). Panel: GARLAND, Rogers, Brown. Claims on Appeal: Title VII retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Refusing to document performance deficiencies of African-American employee, because plaintiff thought it was a step toward terminating that person, not a protected "opposition" to discrimination, where there was no evidence that evaluation was racially motivated. Also, no evidence that plaintiff's lowered review was in any way related to refusal to cooperate (there was evidence that plaintiff failed to adequately supervise staff and botched an assignment).

Hamilton v. Geithner, 666 F.3d 1344, 114 FEP 239 (D.C. Cir. 2012). Panel: TATEL, Garland, Ginsburg. Claims on Appeal: 1. Title VII temporary assignment (race, gender) and Civil Service Reform Act. 2. Title VII promotion (race, gender). 3. Title VII retaliation 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. Mixed-claim for violation of Title VII and CSRA not exhausted, because it was not presented to MSPB or EEO office in a formal complaint. That it was raised in an EEO counseling report does not satisfy jurisdictional prerequisite. 2. Employee presented genuine issue of material fact regarding pretext in 2003 promotion decision, including record that (1) employee possessed superior qualifications for the Safety Manager position over successful candidate (plaintiff had MA in public health, with a specialty in occupational health and nineteen years' of experience as an industrial hygienist, versus no college degree and eight years of experience; wide-ranging experience in developing safety policies, versus thin experience of actual experience developing and implementing programs); (2) agency used highly subjective and unsubstantiated basis to support decision not to promote the employee (no contemporaneous documentation of the Secretary's proffered explanation); and (3) there were procedural irregularities in the selection process (one page missing from notes of panelist who reviewed candidates). Reliance on relative test scores unreliable where agency itself did not customarily rank candidates based on scores alone. 3. Denial of 2004 promotion was, arguably, within zone of temporal proximity where time measured from final protected activity (filing of formal EEO complaint) to denial of promotion was two months. Claim remanded for consideration of pretext.

Barid v. Gotbaum, 662 F.3d 1246, 114 FEP 11 (D.C. Cir. 2011). Panel: WILLIAMS, Rogers, Garland. Claims on Appeal: 1. Title VII discrimination (race, sex). 2. Title VII retaliation. Disposition Below: 1. Dismissal for failure to state a claim, FRCP 12(b)(6) [defendant]. 2. Dismissal for failure to state a claim, FRCP 12(b)(6) [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Reversed [plaintiff]. Grounds: 1. Although an employee can state a claim under Title VII that an employer failed to remediate a condition severe enough to constitute an adverse action: (a) in a dispute over the employer's scan of its email system, some fellow workers circulated emails calling employee "psychotic"; (b) human resources allegedly singled out employee in securing her signature acknowledging receipt of an email-related office memorandum; (c) agency counsel sent an email to employees advising "the 11th floor OGC [Office of General Counsel] staff in the area of conference room 11E to use caution about what they say in halls or open offices," for "[c]ertain people who will be in 11E have a way of twisting and publicizing their litigation induced hallucinations"; (d) one employee testifying as a witness had shouted and pounded the table at employee while she deposed him during a proceeding involving EEO complaints. PBGC's Workplace Rules do not constitute "terms and conditions" of employment. 2. Events occurring beyond the charging period were admissible to be considered as "part of the same actionable hostile environment claim." Conduct set forth above might constitute retaliatory harassment.

Medina v. District of Columbia, 643 F.3d 323, 112 FEP 1109 (D.C. Cir. 2011). Panel: BROWN, Rogers, Griffith. Claims on Appeal: § 1983 Equal Protection and D.C. law retaliation. Disposition Below: Judgment after a jury trial, $90,000 compensatory damages each under each claim [plaintiff]. Outcome on Appeal: Reversed [defendant]. Grounds: Allowing employee who claimed single denial of promotion violated federal constitutional and D.C. human rights law to collect a $90,000 award on each claim constituted improper double recovery, as the injury for both claims was the same (mental distress and humiliation). That the source of law for each recovery was different is not material to whether the award constituted double recovery. Exception to this rule (punitive damages) did not apply, where award was purely compensatory.

Bowie v. Maddox, 642 F.3d 1122, 112 FEP 872 (D.C. Cir. 2011), reh'g denied, 653 F.3d 45, 113 FEP 192 (D.C. Cir. 2011). Panel: BROWN, Sentelle, Williams. Claims on Appeal: 1. §§ 1985(2) and 1986 conspiracy. 2. First Amendment retaliation. 3. Title VII retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Judgment after a jury trial [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Affirmed [defendant]. 3. Affirmed [defendant]. Grounds: 1. On employee's claim that city officials conspired to prevent plaintiff from testifying at a Title VII employment discrimination trial, district court erred in holding that (1) plaintiff had to prove a racially-invidious motivation to conspire, and (2) Title VII superseded conspiracy claims of retaliation in the employment setting. Defendants argued third theory, that as members of the same agency they could not "conspire" with each other (intracorporate conspiracy). Though noting split in circuits on this issue, and indeterminate state of circuit law, panel remands for further factual development. 2. Under holding of Garcetti, plaintiff's claim barred because his alleged protected activity was to produce an affidavit for the EEOC in his official capacity as assistant inspector general. On rehearing, court holds that even if speech has a civilian analogue (Title VII protected speech), that did not alter relevant fact under Garcetti that comment was made in official capacity (noting split with Second Circuit, Jackler v. Byrne). 3. Judge did not err by excluding testimony about post-termination events concerning Reports of Investigation (ROI), which was reason given for plaintiff's termination. Relevant data is what the employer knew at the time of the termination decision, not hindsight evidence. No prejudice in admitting evidence that prior Title VII trial resulted in verdict for the employer on theory that it reduced the chances of the jury speculating on the outcome of that case. Denial of motion to compel investigative reports in discovery; no abuse of discretion where document request did not clearly seek their disclosure.

Geleta v. Gray, 645 F.3d 408, 112 FEP 981 (D.C. Cir. 2011). Panel: GRIFFITH, Ginsburg, Henderson. Claims on Appeal: Title VII retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Genuine issue of material fact whether employee's transfer constituted an adverse action, where jury could find that transfer cost plaintiff supervisory authority (went from staff of 20 to no staff) and programmatic responsibilities (new job involved narrower functions - certifying, reviewing and monitoring). Employee's and supporting witness's declarations were not "conclusory" - they were supported by specific facts in the witness's personal knowledge. There was also a genuine issue whether the reason given for the transfer (part of realignment of duties required by HHS to maintain funding) was pretextual. Agency gave different reasons at different stages of the case about why it transferred plaintiff, and failed to advance explanation for why transfer was necessary where plaintiff was admittedly performing his duties, where timing of transfer coincided less with HHS site visit than with employee's protected activity, and that federally-funded program was terminated the next year anyway. There was also evidence that the employee's supervisor was angry at the employee's complaints, and that not firing him was "a grave mistake" and "[D]on't you know what he's done?"; statement admissible under FRE 801(d)(2)(D).

Colbert v. Tapella, 649 F.3d 756 , 112 FEP 884 (D.C. Cir. 2011). Panel: BROWN, Garland [HENDERSON, concurring]. Claims on Appeal: Title VII promotion (race, sex). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: District court erred by requiring employee to proffer evidence both that the employer's explanation was false and that discrimination was the actual reason. Genuine issue of material fact whether agency believed that the white male employees who were hired were superior, where nothing in the record supported this finding (plaintiff in fact had relevant procurement experience that the agency claimed she lacked), hiring agent did not consider the plaintiff's qualifications at the time and there was evidence that the agent fabricated a reason why he did not hire her (that she supposedly "wandered").

Rattigan v. Holder, 643 F.3d 975, 112 FEP 600 (D.C. Cir. 2011). Panel: TATEL, Rogers [KAVANAUGH, dissenting]. Claims on Appeal: Title VII retaliation. Disposition Below: Judgment after a jury trial [plaintiff]. Outcome on Appeal: Reversed  [defendant]. Grounds: District court committed reversible error by allowing jury to consider validity of Security Division's decision to refer matter of employee's security clearance (by way of evidentiary rulings, jury instruction and verdict form). that decision is immunized on grounds of national security (Department of the Navy v. Egan, 484 U.S. 518 (1988)). Case remanded to evaluate whether the claim can be retried based on theory that plaintiff's supervisors in Office of International Operations of FBI - separate from the Security Division - submitted plaintiff's name to the Security Division in the first instance for retaliatory purposes. Such an action would dissuade a reasonable employee from complaining about discrimination because of the potential impact on his career (including termination), regardless of what action the Security Division takes. Court can take steps to assure that the jury does not weigh the Security Division's actual investigation or results.

Talavera v. Shah, 638 F.3d 303, 111 FEP 1574 (D.C. Cir. 2011). Panel: ROGERS, Brown [SILBERMAN, concurring]. Claims on Appeal: 1. Title VII promotion (sex). 2. Title VII retaliation.  Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Affirmed [defendant]. Grounds: 1. District court erred by excluding statements by Director of Office Security demonstrating that the decision maker was biased against women (director reported that the decision maker was not "culturally sensitive," had "many issues" with women, and "couldn't deal being an equal colleague to a woman"). FRE 801(d)(2)(D) rule on party-admissions required only that the declarant have some authority to speak on matters of hiring and promotion; personal involvement in decision is not required. Plaintiff should have been allowed to admit them and a reasonable inference is that the decision maker's biased attitude affected denial of promotion. Comments were also admissible over FRE 403 objection that the statements were merely stray comments; the were statements by the head of the office about a subordinate who was responsible for making the challenged decision. Comments by lesser managers were properly excluded because the were not shown to be within scope of employment, thus not party-admissions. Biased statement by decision maker made a year prior (that men bonded together because they served in the military) also admissible as evidence of animus against women. Employee was also entitled to a negative inference from spoliation of interview notes, where agency regulations required that they be preserved for two years and EEOC regulations also required that they be preserved. Notes would have been relevant in light of agency's proffered legitimate, non-discriminatory reason that it hired a candidate who performed better in the interview. 2. Insufficient evidence that manager who made adverse action (to refer employee for mental health screening) was aware of her protected activity (complaints about harassment one year earlier).

Calhoun v. Johnson, 632 F.3d 1259, 111 FEP 499 (D.C. Cir. 2010) Panel: GARLAND, Ginsburg, Rogers. Claims on Appeal: 1. Title VII promotion, first position (race). 2. Title VII retaliation, first position. 3. Title VII hiring and retaliation, second position (race). 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. Where one manager had authority to hire, but was then ordered to hire Asian over African-American, employee, manager's testimony that the plaintiff was a superior candidate by a wide margin created a genuine issue of material fact about discrimination. On three of the four criteria in job vacancy notice, plaintiff out-pointed successful candidate in three out of four categories and successful candidate lacked ability to effectively provide guidance to inter-agency committees. 2. Seven-year period between complaint and failure to hire too remote to imply causal link. 3. Where employee had score only marginally higher than successful applicant, it did not create genuine issue of material fact about comparative qualifications.

Vatel v. Alliance of Automobile Mfgs., 627 F.3d 1245, 111 FEP 389 (D.C. Cir. 2011). Panel: KAVANAUGH, Brown, Griffith. Claims on Appeal: Title VII and D.C. law termination (sex, race). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee cannot rebut manager's explanation that she was terminated because of incompatible working styles by her own testimony that they had a positive working relationship. Fact that manager had just a year earlier requested the plaintiff as an assistant made discriminatory inference even less probable (same actor).

Artis v. Bernanke, 630 F.3d 1031, 111 FEP 300 (D.C. Cir. 2011). Panel: BROWN, Griffith, Kavanaugh. Claims on Appeal: Title VII compensation and promotion (race). Disposition Below: Dismissal for lack of subject-matter jurisdiction, Fed. R. Civ. P. 12(b)(1) [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: District court erred in dismissing complaint for lack of subject-matter jurisdiction on the ground that the employees failed to exhaust administrative remedies. Exhaustion is not a jurisdictional issue, but is akin to a limitations period. The Federal Reserve Board by regulation requires informal attempt to resolve an allegation before the filing of a formal complaint, 12 C.F.R. §268.104(a), and for a putative class the exhaustion must be on behalf of a class, 12 C.F.R. §268.204(b). But this regulation does not require that the claimants provide excessively-detailed support for a pattern or practice, which is ordinarily proven through statistical data that is not generally available to the employees. Where the claimants substantiated each allegation of their complaint with relevant examples of personal experience, that gave the agency sufficient information to investigate and to attempt resolution of the complaints. Also, no evidence that the claimants were engaged in bad-faith obstruction of the investigation where, during counseling, employees sometimes did not provide information about personal instances of discrimination and did not consent to a 30-day extension of counseling. Agency's alternative argument that the claims were filed more than 45 days after the effective date of the action was not presented in the district court.

Solomon v. Vilsack, 629 F.3d 555, 23 A.D. Cases 1697 (D.C. Cir. 2010). Panel: TATEL, Ginsburg, Garland. Claims on Appeal: Rehabilitation Act reasonable accommodation and retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Claims for federal disability retirement benefits under FERS do not inherently conflict with disability-discrimination claims under the Rehabilitation Act and do not presumptively bar recipients of such benefits from asserting such claims. FERS applications do not require applicants to expressly represent that they cannot be reasonably accommodated. Employee still required to reconcile statements made in FERS application with her accommodation claim. In this case, the record contains no evidence that employee was advised that employees who can work with reasonable accommodations were ineligible for disability benefits, nor did the employee discuss whether she could resume work withy accommodations. No facts in application were inconsistent with employee's disability claim. Though reasonable jury could find that the FERS application and employee's Rehabilitation Act claim could be reconciled, it is not compelled to do so, and evidence of the application could be used for impeachment. Case remanded to consider whether there was any reasonable accommodation available.

Ford v. Mabus, No 629 F.3d 198, 110 FEP 1665 (D.C. Cir. 2010). Panel: TATEL, Sentelle (HENDERSON, concurring in the judgment). Claims on Appeal: ADEA termination under 29 U.S.C. § 633a. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Although district court did not commit clear error in factual findings that age tinged but did not determine termination decision, and committed no reversible error in evidentiary rulings, plaintiff was entitled to use mixed-motive theory (under federal age discrimination section , describing liability in sweeping language: "all [federal government] personnel actions . . . shall be made free from any discrimination based on age"), under which employee could obtain liability but no remedial relief. Case remanded to determine whether age was a factor in the decision.

Payne v. Salazar, 619 F.3d 56, 110 FEP 264 (D.C. Cir. 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 Belown : 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: the 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 the 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 asthma and 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 in statement 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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