Burke, Kenneth M. v. Gould, William B.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 19, 2002 Decided April 12, 2002

No. 00-5359

Kenneth M. Burke,

Appellant

v.

William B. Gould IV,

Chairman, National Labor Relations Board and

National Labor Relations Board,

Appellees

Appeal from the United States District Court

for the District of Columbia

(No. 98cv01795)

Michael P. Deeds argued the cause for appellant. With

him on the brief was James L. Kestell.

Scott S. Harris, Assistant U.S. Attorney, argued the cause

for appellee. With him on the brief were Roscoe C. Howard,

Jr., U.S. Attorney and R. Craig Lawrence, Assistant U.S.

Attorney.

Before: Henderson, Randolph and Rogers, Circuit Judges.

Opinion for the Court filed by Circuit Judge Rogers.

Opinion dissenting in part filed by Circuit Judge Randolph.

Rogers, Circuit Judge: Kenneth M. Burke appeals the

grant of summary judgment to the National Labor Relations

Board in his reverse discrimination and retaliation case, on

the principal ground that the district court failed to draw all

reasonable inferences in his favor and instead made factual

findings on disputed issues. In suing the Board for violations

of Title VII, 42 U.S.C. s 2000e et seq., as well as s 1981,

Burke challenged his performance evaluations for 1996 and

1997, the removal of his supervisory responsibilities in Janu-

ary 1997, and his non-selection for the position of Deputy

Chief of the Information Technology Branch in November

1997. We affirm the grant of summary judgment on Burke's

discrimination claims and reverse the grant of summary

judgment on two of his retaliation claims.

I.

Burke began working for the Board in 1974 as a computer

systems analyst at the GS-12 compensation level. As the

result of a series of promotions, he became Chief of the Office

Systems Section serving as a supervisory computer systems

analyst in 1988, and by the following year attained the GS-15

compensation level. Throughout this period, Burke received

exemplary performance evaluations, resulting in performance

awards or cash bonuses in nearly every year. During the

period relevant to this appeal, Burke's immediate supervisor

was Samuel Markman, Chief of the Management and Infor-

mation Systems Branch ("MISB"), who reported to Frank

Battle, the Deputy of the Administration Division. Battle

reported to Gloria Joseph, the Director of the Administration

Division, who in turn reported to the General Counsel of the

Board through Joseph Frankl, the Assistant General Counsel.

In July 1997, Louis Adams, who had worked for the General

Services Administration for twenty years, replaced Markman;

Adams reorganized the MISB, and selected Larry Thompson

as his Deputy Chief. Except for Joseph and Thompson, who

are African Americans, all persons mentioned by name in this

opinion are white males.

This litigation arose out of the Board's decision to award its

Fiscal Year 1996 computer maintenance contract to Dynatech

Integrated Systems ("Dynatech"). In 1995, Burke had rec-

ommended Dynatech, a minority-owned company, for a short-

term contract to test its capabilities. Based on Dynatech's

impressive performance, Burke recommended that Dynatech

be awarded the computer maintenance contract. Burke

served as the agency's contracting officer technical represen-

tative ("COTR") to Dynatech. As the result of Burke's

performance as COTR, Joseph, Battle, and Adams took vari-

ous personnel actions affecting Burke. Although at all times

he retained his GS-15 compensation level, Burke's perfor-

mance evaluation for the 1996 (covering the period July 1,

1995 to June 30, 1996) was downgraded from his usual

"Outstanding" rating to "Commendable," and his performance

evaluation for the 1997 (covering the period July 1, 1996 to

June 30, 1997) was downgraded to "Fully Successful," one

level below "Commendable." After Burke voluntarily surren-

dered his COTR responsibilities in June 1996 (before learning

that Joseph had instructed Markman to relieve him of these

responsibilities), Burke was denied direct access to the net-

work password in July 1996. Then, in February 1997, with

the concurrence of the Board's General Counsel, Burke was

relieved of his supervisory responsibilities as section chief and

assigned to unspecified duties. Burke was passed over in

October 1997 for the newly-created position of Deputy Chief

to Adams; an independent panel rated Burke lowest of the

four best-qualified applicants, while Thompson (whom Adams

selected) ranked highest.

The personnel actions were based on events that followed

Dynatech's decision in March 1996, on advice of counsel, to

replace its on-site program manager, Dwight Whitted, who

had developed a close personal friendship with Burke, in

order to avoid potential violation of federal contracting re-

quirements. Thereafter, in the view of Burke's supervisors

and others, including Dynatech officials, Burke grew increas-

ingly critical and unprofessional in his dealings with Dyna-

tech. On April 29, 1996, Burke sent an agency-wide e-mail

survey soliciting feedback from regional office managers on

Dynatech's performance that Joseph and Sunderlin viewed as

biased and intended to encourage negative feedback. On

May 3, 1996, during a meeting with Joseph, Markman, Battle,

and Frankl, Burke described Dynatech as being "screamingly

out of compliance" with its contractual obligations. Accord-

ing to Joseph, this was the first time she had heard Burke

express such a negative assessment of Dynatech's perfor-

mance and represented a dramatic departure from his prior

representations to her and Burke's other superiors. Sunder-

lin also reported to Joseph that during an April 15, 1996,

meeting with Dynatech officials, Burke exhibited "offensive

and unprofessional" behavior, including "disparaging remarks

designed to embarrass and belittle Dynatech officials."

On August 16, 1996, Burke filed an anonymous request for

the Board's Inspector General to review Dynatech's perfor-

mance. After Burke's name was revealed to the General

Counsel on August 22, Joseph, on August 27, asked the

Inspector General to investigate whether Burke's personal

friendship with Whitted, Dynatech's former project manager,

was unethical and influenced Burke's performance of his

official duties. In November 1996, Burke filed an informal

complaint with the Equal Opportunity Office ("EEO"); Jo-

seph learned of this complaint on November 26, 1996. Burke

filed a formal EEO complaint on February 12, 1997. On

February 28, 1997, he filed a second request for the Inspector

General to investigate alleged reprisals taken against him by

Joseph because of his prior complaint to the Inspector Gener-

al and his efforts to obtain contractual compliance by Dyna-

tech.

Burke filed his lawsuit on July 20, 1998, alleging that the

Board's personnel actions constituted unlawful discrimination

and retaliation under Title VII and 42 U.S.C. s 1981. (His

complaint included a claim under the Privacy Act, 5 U.S.C.

s 552a(b), which was dismissed and is not at issue on appeal.)

The Board filed a motion for summary judgment, attaching a

Statement of Material Facts Not In Genuine Dispute ("State-

ment") referring to declarations and affidavits from Joseph,

Battle, Sunderlin, and Adams, as well as Burke's deposition.

The Board also attached exhibits, including three memoranda

written by Burke (including the e-mail survey), agency letters

to Dynatech, and the declarations of Joseph, Battle, Sunder-

lin, and Adams. In response, Burke filed a memorandum in

opposition to summary judgment, attaching his affidavit (with

attachments) and a redacted report of the Inspector General.

His opposition memorandum contained a twenty-five page

section titled "Facts" that included some references to the

record. Burke also filed two "Statement of Material Facts

Which Are Genuinely in Dispute" ("Statement"), the first

admitting or denying the facts alleged by the Board in its

Statement and containing one reference to the record, and

the second making factual assertions without any references

to the record. The Board responded to Burke's opposition,

arguing that: (1) several of Burke's claims were not "adverse

employment actions" and were therefore barred under the

recently-issued decision in Brown v. Brody, 199 F.3d 446

(D.C. Cir. 1999); (2) Burke's Statement, by failing to comply

with Local Rule 56.1, admitted virtually all of the facts set

forth in the Board's Statement; (3) Burke effectively con-

ceded his discrimination claims because he failed to allege any

conduct, much less offer any proof, that his employer had

taken personnel actions "because of [Burke]'s race, color, ...

[or] sex....," 42 U.S.C. s 2000e-2(a)(1); and (4) Burke virtu-

ally abandoned his claim of non-selection as Deputy Chief

because he only argued that he was more qualified than

Thompson.

The district court granted summary judgment to the Board

on all of Burke's claims. Not invoking the requirements of

Local Rule 56.1, the district court reviewed the exhibits

provided by the parties, and found that Burke failed to meet

his burden of showing under Brown, 199 F.3d at 455, 458,

that his 1996 and 1997 performance evaluations constituted

adverse employment actions. The district court also found, in

view of the record evidence, that Burke's "Commendable"

rating in 1996 "reasonably reflected [his] performance as

COTR under the circumstances," and that his "Fully Success-

ful" rating in 1997 was "justified" because it "reasonably

reflected the level of [Burke]'s performance during the rele-

vant time period." Regarding the removal of his supervisory

responsibilities, the district court ruled that Burke failed to

show an adverse employment action, and, assuming an ad-

verse action, that Burke failed to show that all of the reasons

proffered by the Board for relieving him of his supervisory

responsibilities were a pretext for discrimination or retalia-

tion. The district court ruled that Burke also failed to offer

evidence from which to infer that the Board's legitimate, non-

discriminatory reasons for passing over him for the position

of Deputy Chief to Adams were pretextual. Finally, the

court rejected Burke's s 1981 claim on the ground that he

failed to state facts that would support an inference of

purposeful discrimination against him.

II.

Rule 56(c) of the Federal Rule of Civil Procedure provides,

in relevant part, that upon the filing of a motion for summary

judgment:

The judgment sought shall be rendered forthwith if the

pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any,

show that there is no genuine issue as to any material

fact and that the moving party is entitled to judgment as

a matter of law. (emphasis added)

The Supreme Court has observed that "it is from this list that

one would normally expect the nonmoving party to make the

showing [to avoid summary judgment]." Celotex Corp. v.

Catrett, 477 U.S. 317, 324 (1986). Federal Rule of Civil

Procedure 56(e) makes clear, however, that in opposing a

motion for summary judgment that is supported as provided

in the Rule, the adverse party "may not rest upon the mere

allegations or denials of the adverse party's pleading, but ...

by affidavits or as otherwise provided in this rule, must set

forth specific facts showing that there is a genuine issue for

trial." See Anderson v. Liberty Lobby, 477 U.S. 242, 248

(1986).

Presumably in the interests of further simplifying matters,

Local Rule 56.1 of the United States District Court for the

District of Columbia (previously Local Rule 108(h), and be-

fore that Local Rule 1-9(h)), provides, in relevant part, that:

An opposition to such motion shall be accompanied by a

separate concise statement of genuine issues setting

forth all material facts as to which it is contended there

exists a genuine issue necessary to be litigated, which

shall include references to the parts of the record relied

upon to support the statement. * * * In determining a

motion for summary judgment, the court may assume the

facts identified by the moving party in its statement of

material facts are admitted, unless such a fact is contro-

verted in the statement of genuine issues filed in opposi-

tion to the motion. (emphases added)

This circuit has long upheld strict compliance with the

district court's local rules on summary judgment when in-

voked by the district court. Thus, in addressing the moving

party's failure to comply with the local rule, the court ex-

plained in Gardels v. Central Intelligence Agency, 637 F.2d

770 (D.C. Cir. 1980), that "[t]he procedure contemplated by

the [local] rule ... isolates the facts that the parties assert

are material, distinguishes disputed from undisputed facts,

and identifies the pertinent parts of the record." Id. at 773.

Likewise, in Tarpley v. Greene, 684 F.2d 1 (D.C. Cir. 1982),

where the district court ruled that the nonmoving party had

failed to comply with Rule 56(e) and the local rule, id. at 5,

this court affirmed the grant of summary judgment, observ-

ing that the nonmoving party had not "cite[d] any record

evidence, relying instead on the complaint itself," and in his

statement of genuine factual issues "did not set forth specific,

material facts, but simply asserted, without citing evidence in

the record, that there was a disputed issue ...." Id. at 7.

In Twist v. Meese, 854 F.2d 1421 (D.C. Cir. 1988), the court

rejected the notion that a district court abuses its discretion

in accepting as true the movant's properly supported state-

ment of material facts not in dispute where the opposing

party failed to submit a counterstatement. Id. at 1424. As

the court put it, "a district court judge should not be obligat-

ed to sift through hundreds of pages of depositions, affidavits,

and interrogatories in order to make his own analysis and

determination of what may, or may not, be a genuine issue of

material disputed fact." Id. at 1425 (citing Gardels, 637 F.2d

at 773).

On the other hand, the court has cautioned, in view of the

severity of dismissal of a potentially meritorious claim, that

treating an issue as conceded for failure to respond fully to a

motion for summary judgment "should only be applied to

egregious conduct." Robbins v. Reagan, 780 F.2d 37, 52 &

n.23 (D.C. Cir. 1985) (citing National Hockey League v.

Metropolitan Hockey Club, 427 U.S. 639, 643 (1976)). The

presence of egregious conduct in Jackson v. Finnegan,

Henderson, Farabow, Garrett & Dunner, 101 F.3d 145 (D.C.

Cir. 1996), sufficed for the court to decline to hold that the

district court abused its discretion in denying, after a variety

of continuances and the grant of several motions to correct

deficiencies, a further request to supplement a statement of

material facts in dispute where the moving party claimed it

would be prejudiced, and in striking a deficient statement in

which the plaintiff failed to raise the central claim of racial

discrimination underlying his Title VII claim, and which also

lacked citations to the record, depositions, or affidavits. See

id. at 147-48. There, the court rejected the argument that a

memorandum opposing summary judgment that included a

thirty-one page statement of "relevant facts" cured the failure

to conform to the requirement of the local rule that the

opposing party file "a concise statement" of material facts in

dispute. Id. at 153 & n.6.

The plain language of Local Rule 56.1 does not require the

district court to enter judgment because of the nonmoving

party's default in complying with the local rule. It provides

that the district court "may assume the facts identified by the

moving party in its statement of material facts are admitted"

(emphasis added) in the absence of a statement of genuine

issues filed in opposition to the motion for summary judg-

ment. Consequently, this court has long recognized that the

district court does not abuse its discretion by declining to

invoke the requirements of the local rule in ruling on a motion

for summary judgment. For example, in Cleveland County

Assoc. for Gov't by the People v. Cleveland County Bd. of

Comm'rs, 142 F.3d 468, 475 n.12 (D.C. Cir. 1998), the court

rejected the argument that failure to comply with the local

rule mandated judgment against the defaulting party, holding

that it was within the district court's discretion to consider its

motion despite the lapse. Id. at 475 n.12. The court quoted

the statement in Gardels, 637 F.2d at 773, where the court

had acknowledged that "[t]he district court, in its discretion,

may consider a motion for summary judgment even in the

absence of a proper [Rule 56.1] Statement."

Nothing in Frito-Lay, Inc. v. Willoughby, 863 F.2d 1029

(D.C. Cir. 1988), which our dissenting colleague somehow

reads as our only precedent, see dissenting opinion at 4, is to

the contrary. One will search in vain for any indication that

the district court in that case invoked the local rule (then

Rule 108(h)), much less that this court disposed of the appeal

on any ground other than the failure of the nonmovant to

introduce Rule 56(c) materials in accordance with the teach-

ings of Anderson and Celotex. See id. at 1034. In Frito-Lay,

we did not mention the cases cited in this opinion from this

circuit, nor need we have done so given the failure of the

nonmovant to conform with Rule 56(c). That case involved

"an unusual application" of Rule 56, id. at 1030, in which,

under the Perishable Agricultural Commodities Act, 7 U.S.C.

s 499a, et seq., the Secretary's findings, which were adverse

to the nonmovant, established "the prima facie case," id.

s 499g(c)(1982), "unless," as the district court noted, "it is

overcome by evidence submitted by the [nonmovant]." Frito-

Lay, 863 F.2d at 1031. Unlike Burke, who introduced various

forms of Rule 56(c) material in an attempt to negate the

Board's Statement of Facts, the nonmovant in Frito-Lay did

not, and this court properly held him to task for his failure.

Moreover, to the extent our dissenting colleague suggests

that the burden to comply with Local Rule 56.1 is greater on

the nonmoving party, see dissenting opinion at 4, our decision

in Gardels pointed out that the local rule's "purposes are not

served when one party, particularly the moving party, fails in

his statement to specify material facts upon which he relies,"

Gardels, 637 F.2d at 773 (emphasis added), because that

failure denies the nonmovant of "an opportunity fairly to

contest" the movant's case. Id. at 774.

In granting summary judgment for the Board, the district

court here did not rely on the local rule. Rather, as its

opinion makes clear, the district court exercised its discretion

to consider Burke's claims on the merits in light of the

evidence presented by the parties. The Board alerted the

district court to the implications of Burke's noncompliance

with the local rule, but the district court expressly stated that

it had reviewed the parties' exhibits. On appeal, the Board

does not contend that the district court abused its discretion

in failing to hold Burke to the requirements of the local rule,

and we see no basis on which we could so hold. By its terms,

Local Rule 56.1 leaves it to the district court to decide

whether to "assume that facts identified by the moving party

... are admitted, unless such a fact is controverted in the

statement of genuine issues filed in opposition to the motion."

Local Rule 56.1. Unlike Gardels, where this court, in revers-

ing the grant of summary judgment, focused on the fact that

the moving party's failure to comply with the local rule

handicapped the plaintiff's effort to oppose summary judg-

ment, 637 F.2d at 774, Burke faced no such problem in

responding to the Board's motion for summary judgment

motion as it fully complied with the local rule. Burke's case

is also is distinguishable from Jackson, Tarpley, and Twist

because the district court in those cases had invoked the local

rule, and on appeal this court held that the district court did

not abuse its discretion in enforcing the local rule.

Furthermore, because the Local Rules "supplement" and

"shall be construed in harmony" with the Federal Rules of

Civil and Criminal Procedure, see Local Rule 1.1(a); see

Frazier v. Heebe, 482 U.S. 641 (1987); see also Miner v.

Atlass, 363 U.S. 641 (1960), the district court is required by

Federal Rule of Civil Procedure 56(c) itself to consider the

"pleadings, depositions, answers to interrogatories, and ad-

missions on file, together with the affidavits, if any," in

determining whether "there is no genuine issue as to any

material fact and that the moving party is entitled to a

judgment as a matter of law." Fed. R. Civ. P. 56(c); see also

Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). Our cases

are consistent with the requirements of Rule 56(c). See, e.g.,

Jackson, 101 F.3d at 150 (quoting Rule 56(c) and citing

Celotex, 477 U.S. at 324; and Anderson, 477 U.S. at 256-67).

Although Local Rule 56.1 facilitates more precise identifica-

tion of the record materials on which the parties rely, Rule

56(c) identifies the materials the court is to consider before

granting summary judgment. Accordingly, on de novo re-

view, see Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir. 1994), we

review the grant of summary judgment in light of these

requirements.

A.

On the allegations of race discrimination, none of Burke's

Rule 56(c) materials provide a basis on which to reverse the

grant of summary judgment. As the Supreme Court stated

in St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993), once a

defendant offers a non-discriminatory explanation for its ac-

tions, "the presumption [of discrimination] ... simply drops

out of the picture." Id. at 511. Further, the Court instruct-

ed in Celotex, 477 U.S. at 324, that bare allegations of

discrimination are insufficient to defeat a properly supported

motion for summary judgment. See also Anderson, 477 U.S.

at 248-49. Thus, if the evidence presented by the opposing

party is "merely colorable" or "not significantly probative,"

summary judgment may be granted. Id. at 249-50.

Burke's Statement summarily asserts that each of the

challenged personnel decisions was "motivated by discrimina-

tory and retaliatory illegal motivations." When asked during

his deposition what evidence he had of racial discrimination,

Burke's typical answers were: "I think that [Joseph] was

attacking me because I was trying to call to account a black

owned firm;" "[w]hen I put all the characters down in a row

[on a chart] I discovered that they were all black on one side

and all white on the other, so that led me to believe there was

a racial component;" and "I would guess they [Joseph and

Dynatech] simply formed an alliance based on their racial

[word[s] missing]." Similar statements appear in his affida-

vit. See Burke Affidavit at 10.

To the extent that other Rule 56(c) materials are mentioned

in Burke's opposition memorandum, none provide more than

"merely colorable," much less "significantly probative," evi-

dence of unlawful discrimination against Burke under 42

U.S.C. s 2000e-2(a)(1). Cf. Carpenter v. FNMA, 165 F.2d 69,

72-73 (D.C. Cir. 1999). Burke's opposition refers to his

declaration, the declaration of his direct supervisor, Mark-

man, Markman's affidavit alleging that he was discriminated

against when he was removed from his position in February

1997, and the declarations of two other employees; none state

or imply that the personnel actions affecting Burke were

based on his race. Although Burke claimed in his opposition

memorandum that the Inspector General's report showed

that there were disputed issues of material fact concerning

the Board's proffered reasons for acting as it did, the Inspec-

tor General's report did not find that the Board's reasons for

its personnel actions were a pretext for unlawful discrimina-

tion.

Therefore, even assuming that the personnel actions Burke

challenges are adverse employment actions, Burke fails to

show that the Board took the challenged actions because of

his race and so summary judgment was appropriate on his

discrimination claims.

B.

We reach a different conclusion regarding the appropriate-

ness of summary judgment with respect to two of Burke's

claims of retaliation as a result of the exercise of his protect-

ed rights.

In explaining the basis for the personnel actions affecting

Burke, the Board relies in part on evidence of Burke's

unprofessional conduct towards Dynatech officials and in part

on a decline in his job performance after June 1996. Regard-

ing his conduct, the Board points to a memorandum that

Burke wrote to Markman stating that in order to protect his

reputation following the revelation of his friendship with

Whitted, the Dynatech representative, he would have to

"abort the Dynatech contract"; further, he threatened "to

develop a line of evidence [against Dynatech] to cause [its]

debarment." Dynatech officials and Sunderlin, the Chief of

Procurement, advised Joseph of other unprofessional state-

ments and conduct on Burke's part. Burke does not deny

that Dynatech could reasonably perceive that his attitude was

related to emotions caused by the removal of his friend as

Dynatech's contract manager. Joseph and Sunderlin also

considered Burke's email survey to all nationwide offices to

be an act unbecoming the COTR. They further questioned

Burke's failure to directly and timely notify Joseph, the

agency's contracting officer, that one of the agency's largest

contractor accounts was "screamingly out of compliance." As

the district court noted, however, Burke disputed in his

declaration and affidavit the interpretation of his email survey

and whether he was required to directly inform the contract-

ing officer of any problems.

With regard to Burke's removal as COTR, the district

court granted summary judgment, finding in view of Fisch-

bach, 86 F.3d at 1183, that "the record established that the

defendants perceived and believed [Burke] to be performing

poorly based on at least four examples of such arguably

unprofessional conduct directed at Dynatech and its officials,"

but that, by his own admission, he had "removed himself

before the defendants could act." Because Burke admits in

his declaration and affidavit that he voluntarily surrendered

his COTR responsibilities, the district court properly conclud-

ed that he is not in a position to show a retaliatory act by the

Board.

On Burke's claims as to the removal of his supervisory

responsibilities and reassignment to unspecified duties, the

district court granted summary judgment, relying on Furnco

Contr. Corp. v. Waters, 438 U.S. 567, 577 (1978), in concluding

that Burke failed to eliminate all possible legitimate reasons

for the Board's actions and therefore failed to carry his

burden of demonstrating that it was more likely than not that

the Board was motivated by impermissible considerations.

The Board's Statement explains that during the last half of

1996, Joseph and Battle "came to the conclusion that [Burke]

should not continue as head of the Office Systems section."

Among the grounds supporting their conclusion about the

decline in his job performance were "reports from other

people within MISB that Mr. Burke had demonstrated favor-

itism towards certain of his employees, was spending a larger

than normal amount of time behind closed doors, and general-

ly was not as actively involved in a major deployment of new

personnel computers for the agency as he should have been."

However, the declaration of Burke's immediate supervisor,

Markman, disputed that Burke's performance regressed from

July 1996 through January 1997, stating that he did not

criticize Burke's work "nor was there any basis for criticizing

his performance." The declaration of a GS-13 network ad-

ministrator, although admitting that she told Joseph that

Burke was not performing much work on network administra-

tion after the network password was taken away from him in

July 1996, denied informing Joseph that Burke was favoring

some employees under his supervision. Moreover, the In-

spector General found that "there is no evidence to support

the allegations that during the summer, fall and winter of

1996 Burke failed to do his work or that he regressed in it,

except for the testimony of Joseph and Battle--neither of

whom were in a position to observe his work."

In view of the sequence of events immediately prior to the

time Burke was relieved of his supervisory responsibilities,

the Rule 56(c) materials challenging the Board's proffered

reasons suffice to raise a genuine issue of disputed fact. Cf.

Forman v. Small, 271 F.3d 285 (D.C. Cir. 2001). The job

performance evidence on which the Board relied either oc-

curred during the 1996 performance evaluation period while

Burke was the COTR and prior to the time Burke took

protected actions by complaining to the Inspector General

and the EEO, or involved Burke's work in the last half of the

1996 calendar year when he was no longer the COTR. The

declaration of his immediate supervisor challenged the credi-

bility of Joseph and Battle. Similar evidence presented to

the Inspector General presumably also would be admissible at

trial. See Celotex, 477 U.S. at 324. Hence, summary judg-

ment was inappropriately granted on Burke's claim that the

Board acted in unlawful retaliation in relieving him of his

supervisory responsibilities. See Anderson, 477 U.S. at 252;

Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1290 (D.C. Cir.

1998).

As to Burke's claims that the Board acted out of retaliation

in lowering his performance ratings, the district court ruled

that Burke had failed to show that they were adverse employ-

ment actions under Brown, 199 F.3d 446. Although we have

no doubt that the removal of Burke's supervisory responsibili-

ties constituted an adverse employment action, the issue is

not always so clear with regard to performance evaluations.

See id. at 458. As this court observed in Passer v. American

Chemical Society, 935 F.3d 332 (D.C. Cir. 1991), "the [Title

VII] statute does not limit its reach only to acts of retaliation

that take the form of cognizable employment actions such as

discharge, transfer, or demotion." Id. at 330 (citations omit-

ted). The district court correctly ruled that Burke failed to

make the necessary showing of adversity as to his 1996

performance evaluation. See Brown, 199 F.3d at 458. But

Burke's Rule 56(c) materials raise a genuine issue whether

his 1997 performance evaluation was the result of unlawful

retaliation, essentially for the same reasons discussed in

regard to the Board's action in relieving him of his superviso-

ry responsibilities and because in his declaration Burke

claimed that as a result of his 1997 evaluation he was denied

bonus and cash awards that he received nearly every year

previously. See Russell v. Principi, 257 F.3d 815 (D.C. Cir.

2001). We hold first, that summary judgment on Burke's

retaliation claims was appropriate with respect to Burke's

1996 performance evaluation because it was conducted prior

to the time he lodged his complaints with the Inspector

General and the EEO, and second, that the Board was not

entitled to summary judgment on Burke's 1997 performance

evaluation because that review was conducted after Burke

engaged in protected activity (and after Joseph learned of his

EEO complaint) and he sufficiently alleged loss of "a tangible,

quantifiable award." Id. at 819.

C.

Finally, we affirm the grant of summary judgment on

Burke's claim that his non-selection as Deputy Chief in 1997

was discriminatory and retaliatory. Not only does Burke

make no mention of his non-selection as Deputy Chief in his

affidavit, his declaration attacks the choice of Thompson on

the ground that he was less qualified, but not on the ground

that Burke was denied the position because of his race or in

retaliation for his protected activity. Nor do the referenced

affidavits in Burke's opposition memorandum dispute either

Adams' affidavit stating that he was unaware that Burke had

filed an EEO complaint when he selected Thompson as

Deputy Chief, or the fact that the independent panel's assess-

ment of Thompson was that he was the best candidate among

the four persons (including Burke) for the Deputy Chief

position.

Accordingly, we reverse and remand on Burke's claims that

the removal of his supervisory duties and reassignment to

unclassified duties and his 1997 performance evaluation were

in retaliation for protected activity; otherwise we affirm.

Randolph, Circuit Judge, dissenting in part:

Counsel: "In the book of nature, my Lords, it is

written--"

Lord Chief Justice Ellenborough: "Will you have the

goodness to mention the page, Sir, if you please?"

3 John Lord Campbell, The Lives of the Chief Justices of

England 239 (1858).

Burke never mentioned the page, or any pages, of the

record in his "Statement of Material Facts in Dispute," filed

in response to the NLRB's motion for summary judgment.

For that reason, I would affirm the judgment of the district

court in its entirety. The decision of the majority disregards

the governing rules, fills in the blanks for Burke, and thereby

lays a trap not only for our district judges but also for all

parties who move for summary judgment. The new and

unprecedented course thus set for our circuit is a course

other circuits have wisely shunned. Worse, it is a course

directly at odds with the law of this circuit.

A rule of the district court requires nonmoving parties to

provide the district court and opposing counsel with "a sepa-

rate concise statement of genuine issues setting forth all

material facts as to which it is contended there exists a

genuine issue necessary to be litigated, which shall include

references to the parts of the record relied on to support the

statement." Rule 56.1, Rules of the United States District

Court for the District of Columbia (italics added). This is a

straightforward rule, easy to understand and easy to follow.

Burke flagrantly violated it. He dumped nearly two hundred

pages of material into the record, large portions of which

contained information that would be inadmissible at trial and

thus had no proper function in opposing summary judgment.

See William W. Schwarzer et al., The Analysis and Decision

of Summary Judgment Motions 50 (1991). His "Statement of

Material Facts in Dispute" consisted of seven short para-

graphs generally repeating the allegations in his complaint

and containing no references to any evidence on file with the

court.

By proceeding in this manner, in violation of Local Rule

56.1, Burke also violated Rule 56 of the Federal Rules of Civil

Procedure. Rule 56(e) requires the nonmoving party to

"designate 'specific facts showing that there is a genuine issue

for trial.' " Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)

(quoting Fed. R. Civ. P. 56(e)). There was a time in the Fifth

Circuit when the nonmoving party's failure to designate "spe-

cific facts" was not fatal. If the record contained--in the

language of Rule 56(c)--"depositions, answers to interrogato-

ries, and admissions" and "affidavits" showing the existence

of material facts in genuine dispute, it was the district court's

responsibility to ferret the evidence out, upon pain of rever-

sal. See Higgenbotham v. Ochsner Found. Hosp., 607 F.2d

653, 656-57 (5th Cir. 1979); Keiser v. Coliseum Props., Inc.,

614 F.2d 406, 410-11 (5th Cir. 1980). This is basically the

position the majority stakes out in our case. Rule 56(c), we

are told, requires district judges to consider all these items in

determining whether to grant summary judgment, even if the

nonmovant cited none of them in his statement of material

facts in dispute. Maj. op. at 10-11. The Fifth Circuit has

now seen the error of its approach and has overruled Higgen-

botham and Keiser. See Skotak v. Tenneco Resins, Inc., 953

F.2d 909, 916 n.8 (5th Cir. 1992). As the Seventh Circuit

pointed out in L.S. Heath & Son v. AT&T Info. Sys., Inc., 9

F.3d 561, 567 (1993), that line of older Fifth Circuit cases was

"in tension with the Supreme Court's more recent summary

judgment jurisprudence" in Celotex, 477 U.S. at 324;

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256-57 (1986);

and Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475

U.S. 574, 586-87 (1986). Today, in the Fifth and Seventh

Circuits, the nonmoving party must cite to the evidence in

order for that evidence to be considered part of the summary

judgment record. L.S. Heath & Son, 9 F.3d at 567. That is

the law in other circuits as well. Id. (citing Interroyal Corp.

v. Sponseller, 889 F.2d 108, 111 (6th Cir. 1989)); see also

Guarino v. Brookfield Township Trs., 980 F.2d 399, 405 (6th

Cir. 1992); Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671

(10th Cir. 1998). Until today, it had also been the law of this

circuit.

In Frito-Lay, Inc. v. Willoughby, 863 F.2d 1029, 1033 (D.C.

Cir. 1988), we held that Rule 56 required the nonmoving

party to cite evidence and rejected the idea that " 'the entire

record in the case must be searched and found bereft of a

genuine issue of material fact before summary judgment may

be properly entered,' " quoting Nissho-Iwai Am. Corp. v.

Kline, 845 F.2d 1300, 1307 (5th Cir. 1988). As here, the

nonmovant in Frito-Lay had submitted a statement of materi-

al facts in dispute in token compliance with Rule 56 and the

local rule. But the statement made no reference to the

evidence, a defect we held "fatal" to the opposition to sum-

mary judgment. 863 F.2d at 1034.

If we followed Frito-Lay, as every panel of the court must,

see LaShawn A. v. Barry, 87 F.3d 1389, 1395 (D.C. Cir. 1996)

(en banc), Burke's violation of Rule 56 and Local Rule 56.1

should also have been fatal. The majority claims that Frito-

Lay does not control this case because it dealt solely with the

nonmovant's failure "to introduce Rule 56(c) materials in

accordance with the teachings of Anderson and Celotex."

Maj. op. at 9. There is no such teaching. To be sure, a

nonmovant may not defeat a summary judgment motion by

resting on mere allegations or pleadings. See Anderson, 477

U.S. at 256; Celotex, 477 U.S. at 324. But neither Anderson

nor Celotex requires nonmovants to introduce Rule 56(c)

materials in order to avoid summary judgment. Rather,

when appropriate, the nonmovant "may simply demonstrate

to the court that the record on the motion contains sufficient

specific facts to establish the existence of a genuine issue,"

such as by pointing out to the court that the movant ignored

or mischaracterized relevant evidence already in the record.

Schwarzer et al., supra, at 47; see also Isquith v. Middle S.

Utils., Inc., 847 F.2d 186, 198-99 (5th Cir. 1988) (holding that

a nonmovant responding to a motion for summary judgment

need not proffer its own evidence but may point to evidence

already on file). Thus, the nonmovant's mistake in Frito-Lay

was not in failing to submit Rule 56(c) materials, as the

majority supposes. Rather, the nonmovant's mistake--a fatal

one--was its failure to point the district court to material

facts "with the requisite specificity and [to] support them with

appropriate references to the record before the district

court." Frito-Lay, 863 F.2d at 1034. Burke made the same

error and it should have the same consequence.

The majority excuses Burke's failure to point to specific

facts and his noncompliance with the local rule on the basis

that the district judge could, and did, waive the local rule, by

which the majority means that the court did not specifically

invoke the rule against Burke. I have several responses. In

the first place, the district court had no authority to waive

Rule 56. In the second, I do not believe it had the authority

to relieve Burke of the local rule. Neither rule is simply for

the benefit of the district court, although that is certainly part

of it. See, e.g., Twist v. Meese, 854 F.2d 1421, 1425 (D.C. Cir.

1988) ("[A] district court judge should not be obliged to sift

through hundreds of pages of depositions, affidavits, and

interrogatories in order to make his own analysis and deter-

mination of what may, or may not, be a genuine issue of

material disputed fact."). The moving party too is entitled to

a concise statement of the material facts the opponent thinks

are contested. Otherwise, it would be handicapped in trying

to meet the opposing contentions. Local Rule 56.1 and "Rule

56 must be construed with due regard not only for the rights

of persons asserting claims and defenses that are adequately

based in fact to have those claims and defenses tried to a

jury, but also for the rights of persons opposing such claims

and defenses to demonstrate in the manner provided by the

Rule, prior to trial, that the claims and defenses have no

factual basis." Celotex, 477 U.S. at 327. It is true that

several cases such as Gardels v. CIA, 637 F.2d 770, 773 (D.C.

Cir. 1980), say that a district court may ignore the moving

party's failure to comply, a point we recently repeated in

Cleveland County Ass'n for Gov't by the People v. Cleveland

County Bd. of Comm'rs, 142 F.3d 468, 475 n.12 (D.C. Cir.

1998). But these cases did not hold that a district court may

excuse a violation by a nonmoving party, on whom the

burdens are considerably different. See Celotex, 477 U.S. at

324. To so hold would be to contradict our decision in Frito-

Lay. Nothing in our description of the district court's opin-

ion in Frito-Lay indicated that the district court had invoked

the local rule in granting summary judgment, yet we affirmed

on the ground that the nonmovant violated Rule 56 and the

local rule by failing to provide a statement containing cita-

tions to the record.

In any event, the fact that the district court attempted to

search the record despite Burke's noncompliance with Local

Rule 56.1 should not obscure the reality of this case: it was

Burke's inadequate Rule 56.1 statement (not error on the

part of the district court) that caused certain facts to go

undiscovered. Burke bore the burden of pointing out any

material facts to the district court. Having failed to do so, he

should not be permitted to make another attempt. See

Tarpley v. Greene, 684 F.2d 1, 7 n.16 (D.C. Cir. 1982). "Rules

is rules," as the saying goes, Bartlett J. Whiting, Modern

Proverbs and Proverbial Sayings 541 (1989).

The majority's bewildering treatment of the local rule and

Rule 56 will have consequences for litigants, for district court

judges and for our court. The majority begins by proclaim-

ing that we have "long upheld strict compliance." In the next

breath it propounds an exception, stating that only "egre-

gious" violations of the rule matter. Maj. op. at 7-8. The

two statements cannot stand together. This is not an in-

stance in which the exception proves the rule. The majority's

exception destroys the rule. The majority also fails to explain

how its new regime will function when a district court simply

grants summary judgment without an opinion, as district

judges are entitled to do. See Fed. R. Civ. P. 52(a). In such

cases the district court will not have expressly invoked Local

Rule 56.1 and thus, according to my colleagues, neither can

we, which means that we will have to wade through the

record ourselves to determine whether there is evidence to

show genuine issues. I side with the Fifth Circuit that it is

not our duty to do so. See Forsyth v. Barr, 19 F.3d 1527,

1536 (5th Cir. 1994); see also Guarino, 980 F.2d at 406 ("The

free-ranging search for supporting facts is a task for which

attorneys in the case are equipped and for which courts

generally are not."). We review summary judgments de

novo, placing ourselves in the position of the district court

when it decides whether to grant the motion. See Adler, 144

F.3d at 671-72; but see Holtz v. Rockefeller & Co., 258 F.3d

62, 73 (2d Cir. 2001). De novo review means that the district

court's opinion (if it rendered one) drops out. See Liberty

Lobby, Inc. v. Rees, 852 F.2d 595, 598 (D.C. Cir. 1988). To

me, it makes no sense to hold, as the majority does, that if

the district court disregards Local Rule 56.1, we must do the

same. We are not concerned here with a district court ruling

admitting or excluding evidence. Contrast General Electric

Co. v. Joiner, 522 U.S. 136, 143 (1997). As our opinion in

Frito-Lay indicates, the local rule represents an interpreta-

tion of Rule 56(e)'s requirement that the nonmoving party

"set forth specific facts showing that there is a genuine issue

for trial." I would therefore hold that if a nonmoving party

fails to comply with Rule 56 and Local Rule 56.1, as Burke

did in this case, the nonmoving party loses whenever the

movant's submission, considered alone, shows that there is no

genuine issue for trial and that it is entitled to judgment as a

matter of law.