George, Diane v. Leavitt, Michael

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 13, 2005 Decided May 17, 2005

No. 03-5356

DIANE N. GEORGE,

APPELLANT

v.

MICHAEL O. LEAVITT, ADMINISTRATOR, EPA,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 01cv00654)

Suzanne M. Tsintolas argued the cause and filed the brief

for appellant.

Heather Graham-Oliver, Assistant U.S. Attorney, argued

the cause for appellee. With her on the brief were Kenneth L.

Wainstein, U.S. Attorney, and Michael J. Ryan, Assistant U.S.

Attorney. R. Craig Lawrence, Assistant U.S. Attorney, entered

an appearance.

Before: EDWARD S, HENDERSON, and RANDOLPH, Circuit

Judges.

2

Opinion for the Court filed by Circuit Judge EDWARDS.

EDWARDS, Circuit Judge: Following her discharge from the

Environmental Protection Agency (“EPA”), appellant Diane N.

George brought suit in the District Court, claiming violations of

Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C.

§ 2000e et seq. (2000). Specifically, George claimed that she

had been subject to a hostile work environment, that her

discharge was the result of discrimination on the basis of race,

sex, and national origin, and that she was retaliated against for

engaging in activities that were protected under Title VII. The

District Court granted summary judgment in favor of EPA on all

counts. See George v. Horinko, Civ. A. No. 01-00654 (D.D.C.

Oct. 16, 2003), reprinted in Joint Appendix (“J.A.”) 570.

We affirm the judgment against George on her retaliation

and hostile work environment claims, but we reverse the

judgment in favor of EPA on the discrimination claims. On the

record at hand, George has proffered evidence by which a

reasonable jury could conclude that EPA’s stated reasons for her

discharge are a pretext for discrimination. Accordingly, she has

created a genuine dispute over the validity of the reasons given

for her discharge, precluding summary judgment. The case will

therefore be remanded to the District Court for further

proceedings consistent with this opinion.

I. BACKGROUND

Diane George is a black woman originally from Trinidad

and Tobago. An engineer by training, she was hired by EPA on

September 14, 1998, subject to a one-year probationary period,

to work as an environmental specialist in EPA’s Office of the

Asbestos and Small Business Ombudsman (“OASBO”). George

was fired on March 26, 1999.

During the six months that George worked at EPA, Karen

Brown, the Asbestos and Small Business Ombudsman, was

George’s team leader and had direct day-to-day supervisory

3

responsibility over George. Brown, however, was not officially

classified as a manager; rather, Tom Kelly, the director of EPA’s

Office of Regulatory Management and Information, was the

manager of record for both George and Brown. Although

Brown interviewed George and recommended that she be hired,

it was Kelly who officially hired and fired George.

In addition to George and Brown (a black woman), the

OASBO during George’s tenure consisted of a deputy

ombudsman (a white man), four clerical or administrative

employees (all black women), a computer specialist (a black

man), and four professional engineers (all white men). With the

exception of George and an engineer who originally was from

Great Britain, all of the employees were from the United States.

George was the only probationary employee in the unit, but

seven of the other employees, including all four engineers, were

employed not as federal civil servants but rather on a contract

basis under EPA’s Senior Environmental Employment Program.

According to George, she and her co-workers had several

confrontations in December 1998 and January 1999 when her

co-workers made insulting and demeaning statements to her. On

different occasions, she was told by three separate employees to

“go back to Trinidad” or to “go back to where [she] came from.”

On these and other occasions, her co-workers shouted at her,

told her that she should never have been hired, and told her to

“shut up.” George reported each of these incidents to Brown,

but Brown blamed George for causing the incidents and did not

take any action.

George also maintains that she was assigned to various

clerical duties that the white male engineers were never required

to perform. In December 1998 and again in January 1999,

George met with staff in EPA’s Office of Human Resources to

complain about her treatment and to seek advice. George was

told to consider a transfer to another office or take her

4

complaints to the director of the human resources office, but no

further investigation or action appears to have been taken.

On January 27, 1999, Brown and Kelly conducted a review

of George’s job performance. During the course of the

evaluation, neither Brown nor Kelly raised any concerns about

George’s work or conduct. The supervisors’ written evaluation

gave George a “Successful” rating and observed that her work

“shows considerable thought, insight and creativeness” and

“require[s] no more than minor revisions”; that she “[w]orks

effectively with office staff”; that she “routinely” meets her

deadlines; and that she “[k]eeps pace with most new emerging

external EPA issues and activities affecting office roles and

responsibilities.” Brown and Kelly maintain, however, that

Brown advised Kelly before the performance review that Brown

wanted to overlook any problems that George may have had in

order to send her an encouraging message.

According to Brown, in the weeks following George’s

evaluation, George had a number of confrontations with her co-

workers, including one incident when George was rude to an

employee in the EPA mailroom, causing the employee’s

supervisor to lodge a complaint with OASBO, and another

incident when George appeared rude after Brown asked her to

cover a meeting. In mid-February, following these incidents,

Brown met with Carolyn Johnson, the director of the Office of

Human Resources, to seek advice on terminating “a

probationary employee.”

At around the same time, George returned to the Office of

Human Resources to complain about Brown and what George

perceived to be discriminatory treatment. George eventually

met with Johnson, who advised George to take her complaints

to EPA’s Office of Civil Rights. George was provided

information on her rights, including procedures for filing

complaints of discrimination.

5

A few days later, Brown held a staff meeting with the

OASBO clerical staff. Brown told the employees at the meeting

that George was “causing problems” and instructed them to

“keep [their] distance” from her. Brown also told the staff that

she wanted a witness to be present whenever she and George

met. And, on at least one occasion, an employee was asked to

witness a conversation between Brown and George to ensure

that “there couldn’t be any call of harassment.”

On February 23, Brown met with George to discuss some

complaints regarding George’s transcription of phone messages

from an office answering machine (“the Hotline”). George

denied that she had made any mistakes. Brown thought that

George was insubordinate during the meeting, challenging

Brown’s authority. George, on the other hand, maintains that,

without provocation, Brown “suddenly lost control” during the

meeting.

The next day, Brown advised George that her employment

was “not working out” and that she intended to raise the matter

with Kelly. Brown met with Kelly that same day and

recommended that George be fired. Kelly took Brown’s

recommendation under advisement, but made it clear that he

would not simply accept Brown’s account of the facts, but “was

going to find out [for himself] what was going on.”

On February 26, George went to the Office of Civil Rights

to discuss the filing of a discrimination complaint against Brown

and the agency. She also scheduled a private meeting with

Kelly for March 1. At that meeting, George voiced her

complaints to Kelly, expressing concern that she was a victim of

discrimination and harassment. At the conclusion of the

meeting, Kelly told George that he took her complaints seriously

and would look into the situation. Kelly subsequently spoke

with Brown about George’s charges. Brown told Kelly that, in

her view, George was to blame for provoking her co-workers.

6

On March 2, according to George, Brown came into

George’s office and, on her way out, violently and angrily

kicked a box that she stumbled over. Noticeably shaken by this

incident, George met with Kelly to inform him of the incident.

George told Kelly that she was “fed up with the harassment” and

was going to file a complaint with the Office of Civil Rights.

After his meeting with George, Kelly spoke with Brown

about George’s allegations. Brown denied that she had violently

kicked a box, maintaining that she had merely stumbled over it

and moved it out of the way with her foot. Brown told Kelly

that another OASBO employee, James Malcolm, had witnessed

the event.

Kelly claims that he then spoke with Malcolm. According

to Kelly, Malcolm corroborated Brown’s account of the

incident, and also volunteered various problems he had in

working with George. Malcolm does not remember speaking to

Kelly about George, but states that, if he did, he would have

corroborated Brown’s account about the box-kicking incident.

He maintains, however, that he “[a]bsolutely” never complained

about George to Kelly. For her part, George maintains that

Malcolm witnessed an entirely different incident when Brown

stumbled over a box, not the incident in question when Brown

violently kicked a box.

Kelly states that, after his conversations with Brown and

Malcolm, he concluded that George was lying about the box-

kicking incident. At this point, still on March 2, Kelly

concluded that George was unreliable and, his earlier decision

to conduct a full investigation of the facts notwithstanding, he

decided to accept Brown’s recommendation and fire George.

Kelly claims that he continued his investigation on March

3 when he spoke with another OASBO employee, Arnold

Medbery. Kelly knew from Brown that there had been a “great

deal of dissatisfaction” with George’s transcription of Hotline

7

messages. George had told Kelly that she had received

inadequate training on Hotline work and on other tasks that she

was required to perform. Kelly found these claims “incredible”

and wanted to speak with Medbery about the matter. According

to Kelly, Medbery said that George was lying if she had claimed

that she had not received training on transcribing Hotline

messages. Medbery, for his part, firmly denies that such a

conversation with Kelly ever took place. In any event, there is

nothing in the record to suggest how any conversation Kelly had

with Medbery on March 3 might have factored into Kelly’s

decision to fire George, which Kelly claims he made on

March 2.

On March 3, George filed a claim of discrimination with the

Office of Civil Rights. The next day, Kelly notified George by

memorandum of her discharge, citing five reasons: (1) inability

to organize work, analyze and present information, and

demonstrate satisfactory initiative; (2) poor judgment leading to

unacceptable relationships with her peers; (3) inability to accept

coaching and supervision; (4) failure to contribute substantively

in group settings; and (5) making material misrepresentations to

her supervisor. George was immediately placed on paid

administrative leave, where she remained until her separation

from employment on March 26, 1999.

George unsuccessfully challenged her termination in a

whistleblower retaliation action before the Merit Systems

Protection Board before filing claims with the Equal

Employment Opportunity Commission for discrimination and

retaliation. After those claims were rejected, George filed the

instant Title VII action, claiming unlawful discrimination based

on race, sex, and national origin; a hostile work environment;

and retaliation. On October 16, 2003, the District Court granted

summary judgment in favor of EPA on all counts and this appeal

followed.

8

II. ANALYSIS

A. Standard of Review

We review de novo a district court’s decision to grant

summary judgment. Kaempe v. Myers, 367 F.3d 958, 965 (D.C.

Cir. 2004). Summary judgment is proper only if “there is no

genuine issue as to any material fact and . . . the moving party is

entitled to a judgment as a matter of law.” FED. R. CIV. P. 56(c);

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). A

dispute over a material fact is “genuine” if “the evidence is such

that a reasonable jury could return a verdict for the nonmoving

party.” Id. at 248.

The Supreme Court has made it clear that “at the summary

judgment stage the judge’s function is not himself to weigh the

evidence and determine the truth of the matter but to determine

whether there is a genuine issue for trial.” Id. at 249.

“Credibility determinations, the weighing of the evidence, and

the drawing of legitimate inferences from the facts are jury

functions, not those of a judge” ruling on a motion for summary

judgment. Id. at 255. Thus, when reviewing a motion for

summary judgment, a court must view all of the evidence in the

light most favorable to the nonmoving party. Adickes v. S.H.

Kress & Co., 398 U.S. 144, 158-59 (1970); Kaempe, 367 F.3d

at 965.

B. The Discrimination Claims

Title VII makes it “an unlawful employment practice for an

employer . . . to discharge any individual, or otherwise to

discriminate against any individual with respect to his

compensation, terms, conditions, or privileges of employment,

because of such individual’s race, color, religion, sex, or

national origin.” 42 U.S.C. § 2000e-2(a)(1). Although this

provision does not apply to federal agencies, see id. § 2000e(b)

(defining “employer”), Title VII contains a separate provision

that does. See id. § 2000e-16(a) (“All personnel actions

9

affecting employees . . . in executive agencies . . . shall be made

free from any discrimination based on race, color, religion, sex,

or national origin.”). Despite the differences in language

between the two provisions, we have held that “Title VII places

the same restrictions on federal and District of Columbia

agencies as it does on private employers, and so we may

construe the latter provision in terms of the former.” Singletary

v. Dist. of Columbia, 351 F.3d 519, 523-24 (D.C. Cir. 2003)

(internal quotation marks omitted).

George claims that her discharge was the result of

discrimination based on her race, sex, and national origin, in

violation of Title VII’s mandate. Such disparate-treatment

claims are analyzed under the familiar burden-shifting

framework set forth in McDonnell Douglas Corp. v. Green, 411

U.S. 792 (1973). That case “set forth the basic allocation of

burdens and order of presentation of proof” in such cases, as

follows:

First, the plaintiff has the burden of proving by the

preponderance of the evidence a prima facie case of

discrimination. Second, if the plaintiff succeeds in proving

the prima facie case, the burden shifts to the defendant to

articulate some legitimate, nondiscriminatory reason for the

employee’s rejection. Third, should the defendant carry

this burden, the plaintiff must then have an opportunity to

prove by a preponderance of the evidence that the

legitimate reasons offered by the defendant were not its true

reasons, but were a pretext for discrimination.

Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53

(1981) (citation and internal quotation marks omitted).

The Court has emphasized, however, that the “central focus

of the inquiry” in such cases “is always whether the employer is

treating ‘some people less favorably than others because of their

race, color, religion, sex, or national origin.’” Furnco Constr.

10

Corp. v. Waters, 438 U.S. 567, 577 (1978) (quoting Int’l Bhd. of

Teamsters v. United States, 431 U.S. 324, 335 n.15 (1977)); see

also Burdine, 450 U.S. at 253 (noting that the “ultimate burden,”

which “remains at all times with the plaintiff,” is to persuade the

trier of fact “that the defendant intentionally discriminated

against the plaintiff”). The McDonnell Douglas framework

“was ‘never intended to be rigid, mechanized, or ritualistic.

Rather, it is merely a sensible, orderly way to evaluate the

evidence in light of common experience as it bears on the

critical question of discrimination.’” United States Postal Serv.

Bd. of Governors v. Aikens, 460 U.S. 711, 715 (1983) (quoting

Furnco, 438 U.S. at 577). Accordingly, the Court has instructed

that

[w]here the defendant has done everything that would be

required of him if the plaintiff had properly made out a

prima facie case, whether the plaintiff really did so is no

longer relevant. The district court has before it all the

evidence it needs to decide whether “the defendant

intentionally discriminated against the plaintiff.”

Id. (quoting Burdine, 450 U.S. at 253).

In this case, as part of the parties’ cross-motions for

summary judgment, the Government articulated legitimate

reasons for George’s discharge and proffered evidence in

support of those reasons. Accordingly, heeding Aikens’

instruction, we need not address the Government’s contentions

that George failed to make out a prima facie case. Instead, we

proceed to “the ultimate question of discrimination vel non.” Id.

at 714; see also Teneyck v. Omni Shoreham Hotel, 365 F.3d

1139, 1154 (D.C. Cir. 2004) (“[O]nce the defendant has

responded with rebuttal evidence, the factfinder normally

proceeds to the ultimate issue on the merits to determine

whether the employer intentionally discriminated against the

plaintiff.”). Of course, consideration of this question requires us

to evaluate all of the evidence before us, including the same

11

evidence that a plaintiff would use to establish her prima facie

case. See Teneyck, 365 F.3d at 1151 (“The ultimate question . . .

is whether intentional discrimination may be inferred from all

the evidence before the trier of fact. This includes ‘(1) the

plaintiff’s prima facie case; (2) any evidence the plaintiff

presents to attack the employer’s proffered explanations for its

actions; and (3) any further evidence of discrimination that may

be available to the plaintiff (such as independent evidence of

discriminatory statements or attitudes on the part of the

employer).’” (quoting Dunaway v. Int’l Bhd. of Teamsters, 310

F.3d 758, 763 (D.C. Cir. 2002) (internal quotation marks

omitted))).

We note in passing that, in assessing whether George made

out a prima facie case, the District Court committed two legal

errors. First, the District Court held that, “[t]o establish a prima

facie case of disparate treatment discrimination, the plaintiff

must show [inter alia] that she was treated differently than

similarly situated employees.” George, slip op. at 7, J.A. 576.

This is not a correct statement of the law. We have made clear

that a plaintiff makes out a prima facie case of

disparate-treatment discrimination “by establishing that: ‘(1)

she is a member of a protected class; (2) she suffered an adverse

employment action; and (3) the unfavorable action gives rise to

an inference of discrimination.’” Stella v. Mineta, 284 F.3d 135,

145 (D.C. Cir. 2002) (quoting Brown v. Brody, 199 F.3d 446,

452 (D.C. Cir. 1999)). One method by which a plaintiff can

satisfy the third prong of this test is by demonstrating that she

was treated differently from similarly situated employees who

are not part of the protected class. See Holbrook v. Reno, 196

F.3d 255, 261 (D.C. Cir. 1999). But this is not the only way.

In Stella and Teneyck, we made clear that another way to

satisfy Stella’s third prong is to show that the adverse

employment action “is not attributable to ‘the two most common

legitimate reasons on which an employer might rely to reject a

12

job applicant: an absolute or relative lack of qualifications or

the absence of a vacancy in the job sought.’” Stella, 284 F.3d at

145 (quoting Teamsters, 431 U.S. at 358 n.44); see also

Teneyck, 365 F.3d at 1150-51. “Elimination of these reasons . . .

is sufficient, absent other explanation, to create an inference that

the decision was a discriminatory one.” Teamsters, 431 U.S. at

358 n.44. In the context of a discharge claim, this method of

establishing the prima facie case would require a showing that

the discharge was not attributable to the two analogous common

legitimate reasons for discharge: performance below the

employer’s legitimate expectations or the elimination of the

plaintiff’s position altogether. See 1 LEX K. LARSON ,

EMPLOYMENT DISCRIMINATION § 8.08[4] (2d ed. 2005).

The District Court also erred in suggesting that, “[t]o

establish a prima facie case of discrimination in a discharge

decision, the plaintiff must show [inter alia] replacement by a

person of equal or lesser ability who is not a member of a

protected class.” George, slip op. at 7, J.A. 576. This too is an

incorrect statement of the law. In Stella, we made it clear that

“a plaintiff in a discrimination case need not demonstrate that

she was replaced by a person outside her protected class in order

to carry her burden of establishing a prima facie case under

McDonnell Douglas,” noting that such a requirement would go

beyond what is necessary to create an inference of

discrimination. Stella, 284 F.3d at 146; see also Lathram v.

Snow, 336 F.3d 1085, 1088 (D.C. Cir. 2003) (confirming, in

light of Stella, the prima facie test for discriminatory

non-promotion).

Applying the correct legal standards to the record at hand,

it appears that George made out a prima facie case. She is a

member of a protected class, she suffered an adverse

employment action, and her discharge gave rise to an inference

of discrimination, because, as we explain below, George created

a genuine issue as to whether she was performing at a

13

satisfactory level and her discharge was not precipitated by the

elimination of her job. We make this point on the prima facie

case not to “evade[] the ultimate question of discrimination vel

non,” Aikens, 460 U.S. at 714, but rather because George’s

prima facie case is part of the evidence we must consider in

addressing that question.

In assessing the issue of discrimination, the question here is

whether, in light of the record now before us, a reasonable jury

could find that EPA officials acted pursuant to unlawful motives

when they fired George. As noted above, at the summary

judgment stage, a judge may not make credibility

determinations, weigh the evidence, or draw inferences from the

facts – these are jury functions, not those of a judge ruling on a

motion for summary judgment. Therefore, in determining

whether the District Court erred in granting judgment in favor

of EPA, we must view all of the evidence in the light most

favorable to George. And in assessing George’s discrimination

claims to determine whether a jury could reasonably rule in her

favor, we remain mindful that a plaintiff can show

discrimination “either directly by persuading the [factfinder] that

a discriminatory reason more likely motivated the employer or

indirectly by showing that the employer’s proffered explanation

is unworthy of credence.” Burdine, 450 U.S. at 256; accord

Aikens, 460 U.S. at 716.

Usually, proffering “evidence from which a jury could find

that [the employer’s] stated reasons . . . were pretextual . . . will

be enough to get a plaintiff’s claim to a jury.” Carpenter v. Fed.

Nat’l Mortgage Ass’n, 165 F.3d 69, 72 (D.C. Cir. 1999) (citing

Aka v. Wash. Hosp. Ctr., 156 F.3d 1284 (D.C. Cir. 1998) (en

banc)). We think that George has proffered ample evidence by

which a reasonable jury could conclude that EPA’s stated

reasons for her termination are “unworthy of credence.” George

vigorously disputes the validity of the reasons cited by EPA,

creating a genuine dispute over these material facts. Although

14

a jury may ultimately decide to credit the version of the events

described by Brown and Kelly over that offered by George, this

is not a basis upon which a court may rest in granting a motion

for summary judgment.

As already noted, EPA’s discharge letter to George listed

several reasons for its conclusion that George’s “skills and

conduct do not match the mission-based needs of this

organization.” Similarly, Brown declared in an affidavit that

George “was terminated because of problems associated with

her conduct and performance,” including “problems interacting

with other staff,” making “rude comments and loud outbursts

which affected the morale of the office,” and deficiencies in

performance. In its brief to this court, EPA argues that no

reasonable jury could conclude that EPA’s reasons for

discharging George were pretextual, because it is “undisputed”

that George “suffered from both conduct and performance

deficiencies while she was employed by the Agency.” Br. for

Appellee at 19.

While there is no doubt that the record contains evidence to

support EPA’s claim that George had “conduct and performance

deficiencies,” this evidence is not undisputed. For one thing,

George’s January 1999 performance review tends to refute the

suggestion that she had problems on the job. The evaluation

states that George “routinely” meets her deadlines, that she

“[w]orks effectively with office staff,” and that her work

“require[s] no more than minor revisions” and “shows

considerable thought, insight and creativeness.” EPA notes,

however, that the testimony of many of the OASBO employees

corroborates EPA’s claims that George “was not adequately

performing her duties, lacked interpersonal skills and disrupted

the working environment.” Br. for Appellee at 18-19. It is true

that some OASBO employees confirmed in affidavits that

George had some of these problems, but the testimonial

statements of these employees paint a different picture and a

15

number are favorable to George. Moreover, save for one

exception, none of the employees ever complained to Brown or

Kelly about George. In the one instance in which an employee

did raise a complaint (relating to George’s failure to identify the

state corresponding to a phone number’s area code when

transcribing Hotline messages), the employee acknowledged

that the issue was a “small point” and “not a big problem.”

Medbery Depo. at 48, reprinted in J.A. 516. This employee

testimony directly undermines EPA’s repeated explanation that

“[OASBO] employees have made numerous complaints to

[Brown] about [George’s] interactions with them, leading to her

conclusion that [George] cannot work effectively with the

group” and that “[v]irtually all of the staff, with the exception of

one, complained about how Ms. George related to them and her

conduct.”

In addition, George has maintained that her work was

satisfactory and that her co-workers were at fault for the

confrontations she had with them. There is nothing to indicate

that her assessment is either incredible or fanciful. Indeed, her

performance evaluation and some of the statements from other

employees support George. Therefore, there is a genuine issue

as to George’s performance and conduct. See Weldon v. Kraft,

Inc., 896 F.2d 793, 800 (3d Cir. 1990) (“[T]here is no rule of

law that the testimony of a discrimination plaintiff, standing

alone, can never make out a case of discrimination that could

withstand a summary judgment motion.”). Combined with

George’s other evidence, there is no question that a reasonable

jury could conclude that George did not suffer from

“performance and conduct deficiencies” and that EPA’s

explanation is therefore not worthy of credence. See 1 LARSON,

supra, § 8.04, at 8-62 (“[P]retext may usually be established by

demonstrating that the employer’s proffered reason is simply

false.”).

16

Furthermore, an employer’s reason need not be false in

order to be pretextual. Here, for instance, George has also

proffered evidence that the white male engineers in her office

escaped discipline despite engaging in verbal arguments and

incorrectly handling Hotline messages, the same conduct for

which George allegedly was fired. EPA responds that this

evidence is not probative of disparate treatment, because the

other engineers in the office were not similarly situated to

George.

“Whether two employees are similarly situated ordinarily

presents a question of fact for the jury.” Graham v. Long Island

R.R., 230 F.3d 34, 39 (2d Cir. 2000); see also Mungin v. Katten

Muchin & Zavis, 116 F.3d 1549, 1555 (D.C. Cir. 1997). EPA

argues, however, that George and the other engineers were not

similarly situated, as a matter of law, because she was a

probationary employee and they were not. EPA is correct that

we have held that probationary employees and permanent

employees are not similarly situated, observing that, under

federal regulations, probationary employees may be terminated

for problems even if those problems would not be good cause

for terminating a permanent employee. See Holbrook, 196 F.3d

at 262; McKenna v. Weinberger, 729 F.2d 783, 789-90 (D.C.

Cir. 1984). See generally 5 C.F.R. §§ 315.801-.806 (2005)

(rules governing probationary employment). Here, however, the

other engineers were not federal civil servants, but were

participants in EPA’s Senior Environmental Employment

Program. George asserts that, as such, these engineers “were de

facto ‘at-will’ employees . . . who could be terminated at any

time, without notice and for any non-discriminatory reason,”

Br. of Appellant at 30, and EPA does not dispute this

characterization. Under these circumstances, we think that a

reasonable jury could conclude that George and the other

engineers were similarly situated.

17

EPA also contends that George and the other engineers

cannot be considered similarly situated because “the testimony

is overwhelming that no OASBO employee engaged in

violations similar in both frequency and severity as to what Ms.

George is alleged to have done here.” Br. for Appellee at 15.

This, however, misses the point. The extent of George’s

violations is itself in genuine dispute. Thus, although EPA is

correct that the evidence does not demonstrate that any other

OASBO employee engaged in violations to the same extent to

which George is alleged to have committed infractions, a

reasonable jury could conclude that other employees engaged in

violations to the same extent as George actually did. Thus, in

light of George’s evidence that EPA’s reasons are not in fact

true, combined with her evidence that, to the extent that they

may be found to be true, they could not have formed the basis

for her discharge in light of similar violations by the other

OASBO engineers, a reasonable jury could decide that EPA’s

reasons are a pretext for discrimination.

We note, however, that just as an employer’s reason need

not be false to be proven pretextual, conversely, proving that an

employer’s reason is false will not always be sufficient to

demonstrate pretext. This is so because an employer’s action

may be justified by a reasonable belief in the validity of the

reason given even though that reason may turn out to be false.

See Fischbach v. D.C. Dep’t of Corr., 86 F.3d 1180, 1183 (D.C.

Cir. 1996) (“Once the employer has articulated a non-

discriminatory explanation for its action . . . the issue is not the

correctness or desirability of the reasons offered but whether the

employer honestly believes in the reasons it offers.” (internal

quotation marks and alterations omitted)). Of course, the fact

that a proffered reason is objectively false may undermine an

employer’s professed honest belief in that reason, but this is not

always so.

18

Accordingly, EPA could prevail on its motion for summary

judgment, despite a genuine dispute over the objective validity

of its reasons, if it were able to demonstrate the absence of a

genuine dispute in the record over whether Kelly honestly and

reasonably believed in those reasons. EPA, however, did not

rely on this theory before us. Rather, EPA’s argument that there

was no genuine dispute over the validity of its reasons was

based on its contention that it was “undisputed” that George in

fact “suffered from both conduct and performance deficiencies.”

See Br. for Appellee at 17-20. On that score, as we have already

discussed, there is indeed a genuine dispute.

Accordingly, we will reverse the District Court’s grant of

summary judgment in favor of EPA on George’s discrimination

claims. Because the argument was not presented to us, our

ruling does not preclude the possibility that EPA might be able

to prevail on a motion for summary judgment based on the

theory that Kelly honestly and reasonably believed the reasons

he gave for George’s discharge. EPA’s success under such a

theory will ultimately depend on whether, in light of whatever

facts George identifies tending to undermine Kelly’s credibility,

it can nevertheless be decided as a matter of law that Kelly

possessed a good-faith belief in those reasons. To the extent that

Brown, though not officially the decisionmaker who fired

George, participated in and influenced Kelly’s decision, her

good-faith belief in the proffered reasons also becomes relevant.

Cf. Griffin v. Wash. Convention Ctr., 142 F.3d 1308, 1312 (D.C.

Cir. 1998) (“[E]vidence of a subordinate’s bias is relevant where

the ultimate decision maker is not insulated from the

subordinate’s influence.”) (citing Stacks v. Southwestern Bell

Yellow Pages, Inc., 27 F.3d 1316, 1323 (8th Cir. 1994) (“[A]n

employer cannot escape responsibility for discrimination when

the facts on which the reviewers rely have been filtered by a

manager determined to purge the labor force of [a protected

class].” (alterations omitted))).

19

C. The Hostile Work Environment Claim

“‘When the workplace is permeated with discriminatory

intimidation, ridicule, and insult that is sufficiently severe or

pervasive to alter the conditions of the victim’s employment and

create an abusive working environment, Title VII is violated.’”

Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 78

(1998) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21

(1993) (citations and internal quotation marks omitted)).

George argues that she was subject to such an abusive work

environment, citing her confrontations with her co-workers and

her allegation that she was thrice told to “go back where she

came from.”

“[W]hether an environment is ‘hostile’ or ‘abusive’ can be

determined only by looking at all the circumstances. These may

include the frequency of the discriminatory conduct; its severity;

whether it is physically threatening or humiliating, or a mere

offensive utterance; and whether it unreasonably interferes with

an employee’s work performance.” Harris, 510 U.S. at 23. The

Supreme Court has made it clear that “conduct must be extreme

to amount to a change in the terms and conditions of

employment.” Faragher v. City of Boca Raton, 524 U.S. 775,

788 (1998). For example, “simple teasing, offhand comments,

and isolated incidents (unless extremely serious) will not amount

to discriminatory changes in the terms and conditions of

employment.” Id. (citation and internal quotation marks

omitted). In light of these well-established principles, the

District Court correctly recognized that the facts alleged by

George, even if true, would not permit a reasonable jury to

conclude that George’s workplace was “permeated with

discriminatory intimidation, ridicule, and insult that [was]

sufficiently severe or pervasive to alter the conditions of [her]

employment and create an abusive working environment.” At

best, they constitute exactly the sort of “isolated incidents” that

the Supreme Court has held cannot form the basis for a Title VII

20

violation. Accordingly, the District Court’s grant of summary

judgment to EPA on this claim was proper.

D. The Retaliation Claim

Title VII’s opposition clause makes it unlawful “for an

employer to discriminate against any of his employees . . .

because [the employee] has opposed any practice made an

unlawful employment practice by [Title VII].” 42 U.S.C. §

2000e-3(a). George claims that she was discharged in retaliation

for engaging in such protected activity. She notes that, shortly

after she met with Johnson in the Office of Human Resources,

Brown held a meeting with the clerical staff at which she told

them to “keep their distance” from George because she was

making “complaints.” George also notes that Kelly’s decision

on March 2 to terminate her employment came within hours

after she complained to Kelly and told him that she planned to

file a complaint with the Office of Civil Rights.

We have held that “an employee seeking the protection of

the opposition clause [must] demonstrate a good faith,

reasonable belief that the challenged practice violates Title VII.”

Parker v. Balt. & Ohio R.R. Co., 652 F.2d 1012, 1020 (D.C. Cir.

1981). As noted above, the incidents of which George

complained could not reasonably be thought to constitute an

abusive working environment in violation of Title VII.

Accordingly, George’s complaints to Kelly did not constitute

“oppos[ition]” to a “practice made . . . unlawful” by Title VII

within the meaning of § 2000e-3(a). See Clark County Sch.

Dist. v. Breeden, 532 U.S. 268, 271 (2001) (per curiam).

III. CONCLUSION

For the foregoing reasons, we reverse the judgment of the

District Court with respect to George’s discrimination claims

and affirm its judgment as to the remaining claims. The case is

hereby remanded to the District Court for further proceedings

consistent with this opinion.

So ordered.