Czekalski, Loni v. Peters, Mary

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 18, 2006 Decided February 2, 2007

No. 05-5221

LONI CZEKALSKI,

APPELLANT

v.

MARY E. PETERS, SECRETARY OF TRANSPORTATION,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 02cv01403)

Ellen K. Renaud argued the cause for appellant. With her

on the briefs was David H. Shapiro.

Darrell C. Valdez, Assistant U.S. Attorney, was on the brief

for appellee. With him on the brief were Kenneth L. Wainstein,

U.S. Attorney at the time the brief was filed, and R. Craig

Lawrence, Assistant U.S. Attorney. Michael J. Ryan, Assistant

U.S. Attorney, entered an appearance.

Before: ROGERS and GARLAND, Circuit Judges, and

SILBERMAN, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge GARLAND.

2

GARLAND, Circuit Judge: In 1997, the Federal Aviation

Administration reassigned appellant Loni Czekalski -- then a

senior career official -- to a new position with different

responsibilities. She alleges that the reassignment was

effectively a demotion, and that it resulted from gender bias on

the part of her immediate supervisor. Because this allegation

must be resolved in a jury room rather than in the pages of the

Federal Reporter, we reverse the magistrate judge’s grant of

summary judgment in favor of the government.

I

Czekalski began working for the Federal Aviation

Administration (FAA) in 1970, rising through the ranks to

become a member of the Senior Executive Service (SES). In

November 1994, she became Director of the Office of

Communication, Navigation, and Surveillance Systems (known

as “AND”), with responsibility for several hundred employees,

multiple programs, and an annual budget of approximately $400

million. Czekalski reported directly to George Donohue, the

FAA’s Associate Administrator for Research and Acquisitions,

who had selected her for the position.

On June 12, 1997, Donohue reassigned Czekalski from the

position of Director of AND to that of Program Manager of the

Year 2000 (Y2K) Project, a program within the Office of

Information Technology. By memorandum, he advised her that

he was making the reassignment because she had “not

performed up to the standards I expect from my direct reports,

particularly in the area of communications.” Donohue Mem. at

1 (June 12, 1997). The memorandum listed four specific areas

in which Donohue said Czekalski’s performance had been

unsatisfactory. Although he stated that this was “a lateral move

involving no loss of pay or SES status,” id. at 2, there were some

undeniable changes in the nature of her job: she now reported to

3

a former peer, supervised fewer than ten employees, managed a

single program, and did not have a separate budget.

Shortly after receiving Donohue’s memorandum, Czekalski

sent her own memorandum to the Secretary of Transportation,

rebutting Donohue’s stated reasons for the reassignment and

asking the Secretary to restore her to the position of AND

Director. Czekalski Mem. (June 16, 1997). This prompted an

investigation by the Office of Inspector General (OIG), which

reviewed the dueling memoranda, interviewed both parties, and

prepared a brief report summarizing its findings.

On July 12, 2002, after exhausting her administrative

remedies, Czekalski filed suit against then-Secretary Norman

Mineta in his official capacity. The complaint alleged that her

reassignment was motivated by gender discrimination, in

violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.

§ 2000e et seq. Thereafter, the parties agreed that the district

court should refer the case to a magistrate judge for all purposes.

See 28 U.S.C. § 636(c)(1).

On March 31, 2005, the magistrate judge granted the

Secretary’s motion for summary judgment pursuant to Federal

Rule of Civil Procedure 56. The magistrate found that

Czekalski failed to make out a prima facie case of gender

discrimination, both because Czekalski’s reassignment did “not

rise to the level of an actionable adverse employment action,”

and because she failed to “demonstrate that she and a similarly

situated person outside her protected class were treated

disparately.” Czekalski v. Mineta, No. 02-cv-1403, slip op. at 16

(D.D.C. Apr. 21, 2005). The magistrate also held that, “[e]ven

if Plaintiff could make out a prima facie case, she failed to rebut

the Defendant’s legitimate, nondiscriminatory reasons for the

reassignment.” Id. This appeal followed.

4

II

We review the magistrate judge’s decision to grant

summary judgment de novo. Waterhouse v. District of

Columbia, 298 F.3d 989, 991 (D.C. Cir. 2002); see 28 U.S.C. §

636(c)(3). Summary judgment is appropriate only if “there is no

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

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

see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48

(1986). A dispute about a material fact is genuine “if the

evidence is such that a reasonable jury could return a verdict for

the nonmoving party,” Anderson, 477 U.S. at 248, and a moving

party is entitled to judgment as a matter of law only if the

nonmoving party “fails to make a showing sufficient to establish

the existence of an essential element to that party’s case, and on

which that party will bear the burden of proof at trial,” Celotex

Corp. v. Catrett, 477 U.S. 317, 322 (1986). We must view the

evidence in the light most favorable to the nonmoving party

(here, Czekalski), draw all reasonable inferences in her favor,

and eschew making credibility determinations or weighing the

evidence. See Reeves v. Sanderson Plumbing Prods., 530 U.S.

133, 150 (2000); Aka v. Washington Hosp. Ctr., 156 F.3d 1284,

1288 (D.C. Cir. 1998) (en banc).

Title VII prohibits federal agencies from discriminating in

employment on the basis of sex. The statute requires that “[a]ll

personnel actions affecting employees . . . in [federal] agencies

. . . shall be made free from any discrimination based on race,

color, religion, sex, or national origin.” 42 U.S.C. § 2000e-

16(a). Although this language differs from that of the provision

governing private employers, see 42 U.S.C. § 2000e-2(a), we

have held that the two contain identical prohibitions, see, e.g.,

Singletary v. District of Columbia, 351 F.3d 519, 523-24 (D.C.

Cir. 2003) (citing, inter alia, Bundy v. Jackson, 641 F.2d 934,

942 (D.C. Cir. 1981)).

5

Where, as here, the plaintiff’s claim of discrimination is

principally supported by circumstantial evidence, we analyze the

claim under the framework first set forth in McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 802-05 (1973). Under that

framework, “the plaintiff must [first] establish a prima facie case

of discrimination.” Reeves, 530 U.S. at 142. Once she has done

that, the burden shifts to the defendant, who must “articulate

some legitimate, nondiscriminatory reason” for the adverse

action. McDonnell Douglas, 411 U.S. at 802; see Reeves, 530

U.S. at 142. If the defendant satisfies that burden, “the

McDonnell Douglas framework -- with its presumptions and

burdens -- disappear[s], and the sole remaining issue [is]

discrimination vel non.” Reeves, 530 U.S. at 142-43 (citations

and internal quotation marks omitted). Thereafter, to “survive

summary judgment the plaintiff must show that a reasonable

jury could conclude from all of the evidence that the adverse

employment decision was made for a discriminatory reason.”

Lathram v. Snow, 336 F.3d 1085, 1088 (D.C. Cir. 2003) (citing

Aka, 156 F.3d at 1290).

The evidence that must be considered 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) or any contrary evidence that may be available to the

employer (such as evidence of a strong track record in equal

opportunity employment).” Aka, 156 F.3d at 1289. We

consider these three evidentiary categories below.

III

We begin with the plaintiff’s prima facie case. Before

doing so, however, we note that the defendant has already

6

articulated nondiscriminatory reasons for Czekalski’s

reassignment, in the form of the reassignment memorandum that

Donohue sent her. As the Supreme Court has explained, once

a defendant has proffered such a nondiscriminatory explanation,

it has “done everything that would be required of [it] if the

plaintiff had properly made out a prima facie case.” U.S. Postal

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

that point, “whether the plaintiff really did so is no longer

relevant,” and the only question is “‘whether the defendant

intentionally discriminated against the plaintiff.’” Id. (quoting

Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253

(1981)); see Morgan v. Fed. Home Loan Mortgage Corp., 328

F.3d 647, 653-54 (D.C. Cir. 2003); Waterhouse, 298 F.3d at 993

n.6. Accordingly, we evaluate Czekalski’s prima facie case not

to determine whether it was properly established, “but rather

because [her] prima facie case is part of the evidence we must

consider in addressing th[e] question” of whether she has

created a genuine issue of gender discrimination. George v.

Leavitt, 407 F.3d 405, 413 (D.C. Cir. 2005).

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.’” Id. at 412 (quoting Stella v.

Mineta, 284 F.3d 135, 145 (D.C. Cir. 2002)) (additional internal

quotation marks and citation omitted). The magistrate judge

correctly found the first prong satisfied. The magistrate erred,

however, in holding that Czekalski failed to establish both of the

other two prongs.

A

In support of the magistrate’s holding that the reassignment

did not constitute an adverse action, the government argues that,

7

“[b]ecause [Czekalski] did not experience any loss of salary,

grade level, or benefits, her reassignment is properly

characterized as a ‘lateral transfer.’” Appellee’s Br. 15.

Although the government is “correct in considering this case as

one of lateral transfer,” it errs in its implied premise that a lateral

transfer cannot constitute an adverse action. Stewart v. Ashcroft,

352 F.3d 422, 426 (D.C. Cir. 2003). To the contrary, “there are

lateral transfers that could be considered adverse employment

actions.” Id. “[W]ithdrawing an employee’s supervisory

duties,” for example, “constitutes an adverse employment

action.” Id.; see Burke v. Gould, 286 F.3d 513, 522 (D.C. Cir.

2002). So, too, does “reassignment with significantly different

responsibilities.” Forkkio v. Powell, 306 F.3d 1127, 1131 (D.C.

Cir. 2002) (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S.

742, 761 (1998)); see Holcomb v. Powell, 433 F.3d 889, 902

(D.C. Cir. 2006).

Czekalski has raised a genuine issue as to whether the

reassignment left her with “significantly different” -- and

diminished -- supervisory and programmatic responsibilities.

According to Czekalski, as Director of AND she oversaw 260

federal employees, approximately 700 contract employees, over

fifty separate programs, and an annual budget of approximately

$400 million. Czekalski Mem. at 1. Donohue’s estimation is

not materially different: he testified that at AND, Czekalski had

approximately 500 employees and a budget of approximately

$750 million per year. Donohue Dep. at 49-50, 122. After the

reassignment, by contrast, Czekalski testified that she supervised

fewer than ten employees and worked primarily on just one

program -- the Y2K initiative -- with “little to no budget of [its]

own.” Czekalski Dep. at 108 (Sept. 25, 2000). Donohue did not

disagree. Donohue Dep. at 123-24.

Czekalski also proffered evidence that the reassignment

moved her down the FAA hierarchy. Prior to the reassignment,

8

Czekalski reported directly to Donohue. At that time, Donohue

agreed, Czekalski “was a colleague on an equal level with”

another manager, Theron Grey, who Donohue also supervised.

Donohue Dep. at 120. After the reassignment, however,

Czekalski reported not to Donohue but to Grey, who continued

to report to Donohue. See id. In short, the reassignment left

Czekalski reporting to a former peer.

The defendant contends that, notwithstanding the difference

in responsibilities, the reassignment was not an adverse action

because “the new Y2K program was of ‘extreme importance’ to

the agency.” Appellee’s Br. 16 (quoting Donohue Dep. at 120).

In support of that proposition, the defendant submitted evidence

that the Y2K program was a “priority” initiative at the FAA.

Donohue Dep. at 121; DeGaetano Dep. at 26-27. But Czekalski

introduced substantial evidence showing that, at the time she

took the helm in 1997, the Y2K initiative was not as important

to the FAA as her prior responsibilities were.1 We also note that

a reasonable jury could well find it difficult to reconcile the

government’s insistence that the Y2K job was a position of

“extreme importance” to the agency, with Donohue’s assertion

that he reassigned her to that position because she had failed to

perform up to expected standards.

Whether a particular reassignment of duties constitutes an

adverse action for purposes of Title VII is generally a jury

1

See Carrico Dep. at 26 (stating that Czekalski’s prior position,

Director of AND, was “much more important to the agency” than her

new role working on information technology); Crossetti Decl. at 2

(declaring that, “[w]hile the Year 2000 Project was important, in June

of 1997, it was not as highly visible as” other programs that had

previously been under Czekalski’s purview); Zaidman Dep. at 70

(stating that the FAA did not recognize the Y2K issue “as being [a]

really critical thing” until 1998 or 1999).

9

question. See Burlington N. & Santa Fe Ry. Co. v. White, 126

S. Ct. 2405, 2417 (2006). The court may not take that question

away from the jury if a reasonable juror could find that the

reassignment left the plaintiff with significantly diminished

responsibilities. See Holcomb, 433 F.3d at 902. Viewing the

evidence in the light most favorable to Czekalski, we conclude

that a reasonable juror could find that Czekalski suffered an

adverse action.

B

The magistrate judge further concluded that Czekalski

failed to establish a prima facie case because “a trier of fact

[would have] no basis to draw an inference that gender was a

factor in Mr. Donohue’s decision to demote” her. Czekalski v.

Mineta, slip op. at 16. In support, the magistrate held that, to

establish a prima facie case, a “plaintiff must demonstrate that

she and a similarly situated person outside her protected class

were treated disparately,” and that Czekalski failed to so

demonstrate. Id. As we said in George v. Leavitt, however,

“[t]his is not a correct statement of the law.” 407 F.3d at 412.

Although “[o]ne method by which a plaintiff can satisfy the

third prong of [the prima facie] test is by demonstrating that she

was treated differently from similarly situated employees who

are not part of the protected class, . . . this is not the only way.”

Id. In a discharge case, we explained, another way would be to

show that “the discharge was not attributable to the two [most]

common legitimate reasons for discharge: performance below

the employer’s legitimate expectations or the elimination of the

plaintiff’s position altogether.” Id. The same suffices in a

reassignment case like this one. Here, there is no claim that

Czekalski’s reassignment was “precipitated by the elimination

of her job” and, as explained in the next Part, she has “created

a genuine issue as to whether she was performing at a

satisfactory level.” Id. at 413.

10

As we noted in George, “[w]e make [these] point[s] on the

prima facie case not to ‘evade[] the ultimate question of

discrimination vel non,’ but rather because [Czekalski’s] prima

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

that question.” Id. (quoting Aikens, 460 U.S. at 714). The heart

of Czekalski’s evidence, however, is not the minimal showing

required for her prima facie case, but rather the evidence that we

consider in Parts IV and V.

IV

The principal evidence of discrimination upon which

Czekalski relies is her “attack [on] the employer’s proffered

explanations for its actions.” Aka, 156 F.3d at 1289. We have

noted many times before that one way for a plaintiff to show that

an adverse employment decision was made for a discriminatory

reason is to “show[] that the nondiscriminatory explanation the

defendant proffered for its decision was false.” Lathram, 336

F.3d at 1089; see, e.g., Murray v. Gilmore, 406 F.3d 708, 716

(D.C. Cir. 2005); Salazar v. Washington Metro. Transit Auth.,

401 F.3d 504, 511-12 (D.C. Cir. 2005); Anderson v. Zubieta,

180 F.3d 329, 348 (D.C. Cir. 1999); Aka, 156 F.3d at 1293-94.

As the Supreme Court has explained, “[p]roof that the

defendant’s explanation is unworthy of credence is simply one

form of circumstantial evidence that is probative of intentional

discrimination, and it may be quite persuasive.” Reeves, 530

U.S. at 147. In “appropriate circumstances, the trier of fact can

reasonably infer from the falsity of the explanation that the

employer is dissembling to cover up a discriminatory purpose.”

Id.

Donohue outlined his nondiscriminatory explanation in the

memorandum he sent Czekalski notifying her of the

reassignment. The memorandum advised Czekalski that he was

reassigning her because she had “not performed up to the

11

standards I expect from my direct reports,” and it identified four

specific programs as to which Czekalski’s performance had been

lacking. Czekalski responded with a memorandum of her own

(which she subsequently supplemented by her deposition), and

the OIG then investigated. The OIG’s report largely confirmed

Czekalski’s rebuttals; indeed, it noted that Donohue withdrew

several of his assertions in the course of his OIG interview.2

The first performance failure that Donohue identified

involved the FAA’s Wide Area Augmentation System (WAAS).

Donohue’s memorandum to Czekalski stated that, “[f]or more

than two years now, . . . you have failed to bring my attention to

under-reporting of costs associated with the Wide Area

Augmentation System.” Donohue Mem. at 1. In response,

Czekalski wrote that she had briefed Donohue regarding the

WAAS cost overruns as early as October 1996, eight months

before her reassignment. Czekalski Mem. at 2. When

confronted with this response in his interview with the OIG,

Donohue conceded that “any focus on WAAS problems in his

memorandum is a ‘complete red herring’ and that Ms.

Czekalski’s reassignment from her position was not the result of

WAAS.” OIG Mem. at 2. The OIG’s report concluded that

“Czekalski’s written rebuttal addressing specific statements on

WAAS made in Dr. Donohue’s memorandum w[as] generally

valid.” Id. at 3.

2

The Government contends that the OIG report is “inadmissible”

because it “is made up of inadmissible conclusions and multiple level

hearsay that are not ‘evidence’ for purposes of a summary judgment

motion.” Appellee’s Br. 30. The magistrate judge did not so rule and,

to the contrary, it appears that the OIG report would be admissible as

a public report under Federal Rule of Evidence 803(8), and that the

statements Donohue made to his OIG interviewers (recited in the

report) would be admissible as admissions by a party-opponent under

Rule 801(d)(2).

12

The second failure identified by Donohue involved the

National Airspace Integrated Management System (NIMS).

Donohue stated that Czekalski had “failed to make me aware of

the deteriorating leadership problem with the NIMS program,”

and that “[n]ow, we are at a point where ATS [Air Traffic

Services] feels the situation has gotten so bad that we need to

transfer leadership to ATS.” Donohue Mem. at 1. Czekalski

responded that she had remedied the leadership problems within

NIMS by replacing several employees, and that “these personnel

actions and results were communicated to Dr. Donohue.”

Czekalski Mem. at 3. By the time of his OIG interview,

Donohue had retreated from this charge as well, stating his view

that “NIMS project leadership should not be changed and should

not be transferred to Air Traffic Services.” OIG Mem. at 4.

Third, Donohue wrote Czekalski that “you also have failed

to provide the [Integrated Product Teams] the kind of direction

and support they need to carry out their work,” particularly “the

team working on the next-generation radio.” Donohue Mem. at

2. But Czekalski pointed out that her office did not have

responsibility for directing and developing the next-generation

radio effort mentioned by Donohue. Czekalski Mem. at 3.

Again, Donohue essentially conceded the issue when he spoke

with the OIG. He told the OIG that the next-generation radio

project was in the “investment analysis phase,” and “confirmed

statements in Ms. Czekalski’s . . . memorandum . . . that projects

in [that] phase are the responsibility of another office.” OIG

Mem. at 5.

Finally, Donohue’s memorandum complained that

Czekalski had “allow[ed] the [Automatic Dependent

Surveillance - Broadcast (ADS-B)] program to languish.”

Donohue Mem. at 2. In response, Czekalski stated that she

could not be charged with allowing the ADS-B program to

languish, because the program had not been funded during her

13

time as director. Czekalski Mem. at 3. The OIG largely

“confirmed Ms. Czekalski’s statement.” OIG Mem. at 6.

To be sure, in both his OIG interview and subsequent

deposition, Donohue attempted to “clarif[y]” some of the

assertions in his 1997 memorandum and to “change the period

of time for which he claimed to be uninformed” by Czekalski.

OIG Mem. at 3; see Donohue Dep. at 126-28. But there is no

question that Czekalski proffered evidence from which a jury

could have concluded that each of the four reasons offered in the

contemporaneous memorandum was false, and that Donohue’s

subsequent clarifications represented nothing more than back-

pedaling. From this evidence, a jury could have concluded that

“the employer’s stated reason was pretextual and that the true

reason was discriminatory.” Stella, 284 F.3d at 144 (citing

McDonnell Douglas, 411 U.S. at 804). Based on the record

before us, “we see no circumstances . . . that would preclude a

rational factfinder from inferring discrimination from pretext.”

Murray, 406 F.3d at 715 (D.C. Cir. 2005).

V

Finally, we consider “any further evidence of discrimination

that may be available to the plaintiff,” as well as “any contrary

evidence that may be available to the employer.” Aka, 156 F.3d

at 1289.

Czekalski offered independent evidence that Donohue

harbored discriminatory attitudes toward women. Burton

Gifford, a male employee in AND, testified that Donohue “just

doesn’t give women, that I have observed, any credibility for

what they’re saying, or even acknowledge they said it, in some

cases.” Gifford Dep. at 80. He also testified that Donohue gave

male employees “preference in program responsibilities, which

included apparent forgiveness for slippag[es] in schedule and or

14

costs,” while treating female employees with similar difficulties

dismissively. Id. at 20-21. Another male employee, Dr. Charles

Overby, testified that Donohue treated women in a “sexist” and

“demeaning” manner. Overby Dep. at 40.

Both men pointed to specific events to substantiate their

testimony. Gifford described an incident in which Donohue

turned his back on a female subordinate who disagreed with him

in a meeting. Gifford Dep. at 79; see also id. (“[Donohue] turns

away from it and refuses to deal with it when women are making

these comments. He just turns to someone else and goes on with

his agenda, as opposed to when a man . . . makes that type of

statement.”). And Overby related an episode in which Donohue

was “cavalier and rude” to a high-ranking female administrator

in a belittling way -- essentially telling her that “[y]ou don’t

have to worry your head about that.” Overby Dep. at 39.

In Aka v. Washington Hospital Center, we recognized that

evidence “of discriminatory statements or attitudes on the part

of the employer” may support a verdict for a Title VII plaintiff.

156 F.3d at 1289; see also Dunaway v. Int’l Bhd. of Teamsters,

310 F.3d 758 (D.C. Cir. 2002) (reversing a grant of summary

judgment to an employer in a Title VII case where, inter alia, a

supervisor had made disparaging comments about the plaintiff’s

gender and ethnic background). When viewed in conjunction

with Czekalski’s strong evidence of pretext, this testimony

would permit a reasonable jury to rule in her favor.

To counter this evidence of animus, the government relies

on testimony tending to show that “Dr. Donohue was rude and

dismissive toward most other employees, male and female.”

Appellee’s Br. 10. In the government’s view, Donohue was

apparently an equal-opportunity abuser, who “treated both men

and women harshly.” Id. at 24. Perhaps. But Czekalski’s

witnesses testified to the contrary. See Gifford Dep. at 21, 80

15

(testifying that Donohue treated women differently, and far

more dismissively, than he treated men); Overby Statement at 1

(same). This is a dispute we cannot resolve without evaluating

witness credibility and weighing the evidence, neither of which

is appropriate at the summary judgment stage.

The government also points to the fact that Donohue, “being

fully aware that [Czekalski was] a female,” was the person who

selected her for the position of Director of AND in the first

place, and who subsequently recommended her for a Senior

Executive Service pay level increase. Appellee’s Br. 29-30. To

be sure, this is probative evidence against the claim that he

harbored a general animus against female employees. See

Waterhouse, 298 F.3d at 996. But the fact that Donohue once

promoted Czekalski cannot immunize him from liability for

subsequent discrimination, nor is it alone sufficient to keep this

case from the jury. In light of all of Czekalski’s evidence, a

reasonable trier of fact could conclude that Donahue reassigned

her for a discriminatory reason.

VI

Because we find that a reasonable jury could render a

verdict in favor of Czekalski, the magistrate judge’s grant of

summary judgment in favor of the government is

Reversed.