Weber v. Battista

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 9, 2007 Decided July 17, 2007

No. 05-5309

ENID W. WEBER,

APPELLANT

v.

ROBERT J. BATTISTA, CHAIRMAN, NATIONAL LABOR

RELATIONS BOARD,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 01cv00862)

Michael P. Deeds argued the cause and filed the briefs for

appellant.

Alan Burch, Assistant U.S. Attorney, argued the cause for

appellee. With him on the brief were Jeffrey A. Taylor, U.S.

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

Michael J. Ryan and Stratton C. Strand, Assistant U.S.

Attorneys, entered appearances.

Before: GINSBURG, Chief Judge, and SENTELLE, Circuit

Judge, and EDWARDS, Senior Circuit Judge.

2

Opinion for the Court filed by Chief Judge Ginsburg.

Ginsburg, Chief Judge: Enid Weber appeals from the

summary judgment entered by the district court in favor of her

employer, the National Labor Relations Board, on Weber’s

claim that the Board discriminated against her and, when she

complained, retaliated, all in violation of Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § 2000e et seq. We affirm that

judgment insofar as the district court held Weber has not shown

the Board’s explanations for numerous alleged acts of

discrimination were false or that discrimination or retaliation

was among the real reasons for any of them. See St. Mary’s

Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993). We reverse that

judgment insofar as the district court dismissed her claims (1)

that the Board discriminatorily failed to select her for a higher

position, which the court dismissed on the ground that Weber

did not exhaust her administrative remedies; and (2) that certain

performance evaluations, which allegedly caused her not to

receive an award, were not materially “adverse employment

actions.” We remand this case for the district court to resolve on

the merits the claims it dismissed.

I. Background

Enid Weber, an Hispanic woman, was employed by the

Board from 1971 until her retirement in 2006. From 1989

onward she was an Associate Executive Secretary to the

Chairman.

In 1997 Weber sought informal counseling with the Board’s

Office of Equal Employment Opportunity (OEEO), as required

before she could file a Title VII action in district court. See 29

C.F.R. § 1614.105(a). She alleged the Board had discriminated

against her in numerous ways based upon her sex and national

origin and had retaliated against her for complaining by denying

3

her “equal pay for equal work,” in violation of the Equal Pay

Act, 29 U.S.C. § 206(d). When the parties were unable to

resolve Weber’s grievance informally, she filed a formal

administrative complaint with the OEEO alleging the Board had

discriminated and retaliated against her, in violation of Title VII,

when it: (1) failed to select her to be the Acting Deputy

Executive Secretary; (2) treated her differently than other

employees with regard to her performance appraisal; (3) barred

her from assigning work to the secretarial staff; (4) isolated her

and took measures to keep information from her; (5) denied her

access to Board members, Chief Counsels, Board supervisors,

and Board staffs; (6) chose another employee to handle

“agendas and ... other meetings with the Board members and/or

with Chief Counsels”; and (7) took certain duties away from her.

She also continued to allege that the Board had not paid her as

required by the Equal Pay Act.

On August 9, 1999 Weber sent a memorandum to the

OEEO “amending [her] pending EEO charges to include as an

act of retaliation and/or of discrimination the permanent

reassignment ... of Lester A. Heltzer as Deputy Executive

Secretary ... with ... the consequent bypassing of [Weber].” The

Acting Director of the OEEO responded, saying Weber’s

“amended complaint ... has been accepted for processing,” and

the OEEO’s contractor later investigated the issue raised in the

amendment.

When the time allowed had passed with no final decision

from the OEEO, see 29 C.F.R. §§ 1614.108(e), 1614.110, Weber

filed a complaint in district court raising all the claims listed

above. The district court transferred Weber’s claim under the

Equal Pay Act to the Court of Federal Claims, which has

exclusive jurisdiction over claims against the federal

government exceeding $10,000, and granted partial summary

judgment in favor of the Board on Weber’s Title VII claims.

4

Weber v. Hurtgen, 297 F. Supp. 2d 58, 62, 69 (D.D.C. 2003)

(Weber I). In the latter respect, the district court first held

Weber had failed to exhaust her administrative remedies insofar

as she amended her formal complaint to add her claim of

nonselection without having first sought informal counseling.

Id. at 66-67. The court also held that neither of the performance

evaluations she challenged amounted to an “adverse

employment action” and therefore did not support a prima facie

case of discrimination or retaliation. Id. at 64-65. More

specifically, the court reasoned that the 1997-98 performance

evaluation, which rated Weber from “fully successful” to

“outstanding” on four “critical elements” without assigning a

“rating of record,” was not adverse because Weber still received

a “special act award” — 80 hours of leave — which was

comparable to what other similarly situated employees had

received as performance awards. Id. at 64. The district court

concluded that Weber’s rating of “commendable” for the 1998-

99 rating period was not an adverse action because it was “not

‘adverse in an absolute sense’” and her “salary and grade were

not impacted.” Id. (quoting Brown v. Brody, 199 F.3d 446, 458

(D.C. Cir. 1999)).

The court also “invite[d] the [Board] to file a renewed

motion for summary judgment on the specific issue of whether

the [Board] had legitimate, nondiscriminatory reasons for the

multitude” of allegedly discriminatory or retaliatory acts of

which Weber had complained. Id. at 69. When the Board did

so, the district court entered summary judgment for the agency,

concluding Weber had failed to meet her burden of proving the

justifications offered by the Board were false and the real reason

was discrimination or retaliation. Weber v. Battista, 2005 WL

4908965, at *1-3 (D.D.C. Mar. 17, 2005).

II. Analysis

5

On appeal, Weber first argues the district court erred in

dismissing both her claim regarding her nonselection as Deputy

Executive Secretary on the ground that she had failed to exhaust

her administrative remedies before filing suit, and her claims

regarding her performance ratings, which the court held were

not materially adverse employment actions. Title VII provides

that “[a]ll personnel actions affecting employees ... in executive

agencies ... shall be made free from any discrimination based on

race, color, religion, sex, or national origin.” 42 U.S.C.

§ 2000e-16(a). Where, as here, a plaintiff proffers only indirect

evidence of unlawful discrimination, her case is subject to the

three-part test of McDonnell Douglas Corp. v. Green, 411 U.S.

792, 802-04 (1973):

Under McDonnell Douglas, it is the plaintiff’s burden

to establish a prima facie case of discrimination by a

preponderance of the evidence. If the plaintiff

establishes a prima facie case, the employer must then

articulate a legitimate, nondiscriminatory reason for its

actions. The plaintiff must then demonstrate that the

employer’s stated reason was pretextual and that the

true reason was discriminatory.

Stella v. Mineta, 284 F.3d 135, 144 (D.C. Cir. 2002) (citations

omitted). Accordingly, Weber also argues that she met her

burden of proof by showing each of the numerous acts of which

she complained was a pretext for discrimination or retaliation.

A. Exhaustion

Under regulations promulgated by the Equal Employment

Opportunity Commission (EEOC) to implement Title VII, an

employee of the Executive Branch of the federal government

who believes she has been “discriminated against on the basis of

... sex [or] national origin ... must consult a Counselor [in the

6

agency’s OEEO] prior to filing a [formal administrative]

complaint in order to try to informally resolve the matter,” and

“must initiate contact with a Counselor within 45 days of the

date of the matter alleged to be discriminatory.”* 29 C.F.R.

§ 1614.105(a)(1). The OEEO “shall dismiss” the complaint

insofar as it “raises a matter that has not been brought to the

attention of a Counselor and is not like or related to a matter that

has been brought to the attention of a Counselor.” 29 C.F.R.

§ 1614.107(a)(2).

The Board contends Weber failed to exhaust the claim

concerning her nonselection because she added it by amending

her formal administrative complaint without first having sought

informal counseling with regard to that claim. According to the

Board, the Supreme Court’s teaching that “[e]ach discrete

discriminatory act starts a new clock for filing charges alleging

that act,” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101,

113 (2002); cf. Ledbetter v. Goodyear Tire & Rubber Co., 127

S. Ct. 2162, 2166-72 (2007), should be applied equally to an

allegedly discriminatory or retaliatory act occurring after the

filing of a formal complaint, because doing so promotes the

informal resolution of claims. See Horton v. Potter, 369 F.3d

906, 908-10 (6th Cir. 2004).

Weber makes two arguments that she did exhaust her

administrative remedies. First, Weber argues her memorandum

of August 9, 1999 to the OEEO “initiate[d] contact with [a] ...

Counselor” within 45 days (indeed, within three days) of the

Board’s having selected Lester Heltzer instead of her to be the

Deputy Executive Secretary. 29 C.F.R. § 1614.105(a)(1).

Alternatively, she contends she properly raised the claim

*

An employee of a covered employer other than the

Executive Branch would file her charge of discrimination or retaliation

with the EEOC. 42 U.S.C. § 2000e-5(e)(1).

7

regarding her nonselection by amending her formal

administrative complaint to include the new count because her

new claim was “like or related to” the count in that complaint

claiming she had been passed over for the position of Acting

Deputy Executive Secretary. Here she invokes another

regulation of the EEOC, which provides, “A complainant may

amend a complaint at any time prior to the conclusion of the

investigation to include issues or claims like or related to those

raised in the complaint.” § 1614.106(d). As the EEOC has

interpreted this provision, a new claim is “like or related to” a

pending claim if it “could have reasonably been expected to

grow out of the original complaint during the investigation.”

Core v. Brownlee, 2004 WL 189570, at *1 (E.E.O.C. Jan. 23,

2004). If the new claim meets this requirement, then “[t]here is

no requirement that the amendment be subject to counseling.”

Id.

In the wake of Morgan, two circuits have considered and

reached different conclusions with respect to whether a claim

arising after the filing of a formal administrative complaint must

be raised with the EEOC or, if the complaint is against a federal

agency, with the agency’s OEEO, before being brought before

a district court. The Eighth Circuit in Wedow v. City of Kansas

City, 442 F.3d 661, 673-74 (2006), held a plaintiff need not

separately exhaust her administrative remedies with respect to

“subsequent retaliatory acts ... of a like kind to the retaliatory

acts alleged in the EEOC charge, which were specified to be of

an ongoing and continuing nature.” Instead, the Eighth Circuit

entertained such claims, although they were raised for the first

time in the complaint filed in district court. Id. at 672.

In Martinez v. Potter, 347 F.3d 1208, 1210 (2003), the

Tenth Circuit read Morgan as having “effected fundamental

changes to the [continuing violation] doctrine allowing

administratively unexhausted claims in Title VII actions.”

8

Henceforth, a complainant must start anew before the EEOC or

the employing agency’s OEEO before raising in the district

court a “discrete claim[] based on incidents occurring after the

filing of [the formal administrative] complaint,” see id. at 1210-

11, apparently without regard to whether the after-arising claim

is like or related to a claim in the administrative complaint and

to whether the plaintiff had alleged the discrimination was

ongoing. Id.

In this case, we need not adopt either of the foregoing views

in order to conclude, pursuant to her alternative argument, that

Weber exhausted her administrative remedies with regard to her

claim of discriminatory nonselection for the position of Deputy

Executive Secretary. As contemplated in 29 C.F.R.

§ 1614.106(d) and Core, that claim “could have reasonably been

expected to grow out of” her earlier complaint concerning her

nonselection as Acting Deputy Executive Secretary, and the two

are therefore “like or related.” The OEEO may entertain such

a claim even though it was raised after the filing of the formal

administrative complaint, 29 C.F.R. § 1614.107(a)(2), and here

the OEEO did just that; by inquiring of Weber’s immediate

supervisor, Executive Secretary John Toner, the OEEO

investigated and put the Board on notice of the matter.

Therefore, we conclude Weber gave the Board an opportunity to

resolve her claim administratively before she filed her complaint

in district court. Accordingly, we remand this aspect of the case

for the district court to resolve on its merits Weber’s claim with

respect to her nonselection as Deputy Executive Secretary.

B. Performance Evaluation as Adverse Action

Weber also contends the Board retaliated against her by

lowering the “rating of record” on her performance evaluations

for 1997-98 and 1998-99, as compared to her ratings for

9

previous years. In order to make out a prima facie case of

retaliation, Weber must demonstrate that she engaged in

protected activity, as a consequence of which her employer took

a materially adverse action against her. Jones v. Wash. Metro.

Area Transit Auth., 205 F.3d 428, 433 (D.C. Cir. 2000); Ethnic

Employees of the Library of Congress v. Boorstin, 751 F.2d

1405, 1415 n.13 (D.C. Cir. 1985) (noting § 2000e-16, which is

silent on the subject, nonetheless prohibits retaliation against a

federal employee who has invoked Title VII). The Board

defends the district court’s holding that neither performance

evaluation was a materially adverse employment action.

Toner rated Weber’s performance for 1997-98 from “fully

successful” to “outstanding” with respect to the four critical

elements of her job, but did not give her an overall rating. For

1998-99, he rated her from “commendable” to “outstanding” on

the same four critical elements and gave her an overall rating of

“commendable.” Weber contends that giving her lower ratings

on critical elements in 1998 and a lower overall performance

rating in 1999 than in past years were adverse actions; they

caused her to lose a performance award, and are therefore

“harmful to the point that they could well dissuade a reasonable

worker from making or supporting a charge of discrimination.”

Burlington N. & Santa Fe Ry. Co. v. White, 126 S. Ct. 2405,

2409 (2006).

The Board contends there is no evidence relevant to

Weber’s contention that the lowered performance ratings in her

performance evaluations for 1997-98 and 1998-99 caused her to

lose a performance award for either period, and points out that

such awards are “optional” with the agency: As provided in a

1994 Administrative Policy Circular, “Employees with ratings

of record of ‘Outstanding’, ‘Commendable’ or ‘Fully successful’

may receive performance awards,” but the failure to receive an

“optional performance award may not be appealed.” Finally, the

10

Board argues there is no evidence Weber’s performance rating

was “unusual for Weber over the course of her time at the

NLRB” or less favorable than the rating of any comparably

situated employee.

Unlike the Board, we see in the record evidence sufficient

for a reasonable jury to conclude that the Board gave

performance awards upon the basis of each the employee’s

rating of record in his or her annual performance evaluation.

The self-same Administrative Policy Circular upon which the

Board relies flatly states, “The results of performance appraisal

serve as the basis for performance award decisions,” and

“Performance Awards are based on an employee’s rating of

record.” Moreover, Weber’s previous ratings of record and

correlative performance awards are consistent with this causal

relationship. For example, she was rated “outstanding” and

received a quality step increase, apparently as a performance

award, for the 1994-95 rating period. (For the 1995-96 rating

period, Weber received another quality step increase, but the

record does not indicate her rating of record for that period.)

For the 1996-97 rating period, she was rated “Outstanding” and

received a performance award of $2,335.*

In Burke v. Gould, 286 F.3d 513, 522 (D.C. Cir. 2002) we

held the Board “was not entitled to summary judgment on [the

plaintiff’s] 1997 performance evaluation because that review

was conducted after [the plaintiff] engaged in protected activity

... and he sufficiently alleged loss of ‘a tangible, quantifiable

award,’” in the form of a performance or cash award, which he

had received “nearly every year” before he filed a complaint of

*

According to the 1994 Administrative Policy Circular, a

“cash award” may be provided as “[s]pecial recognition for other

types of accomplishments” and given in addition to any performance

award.

11

discrimination with the Board’s OEEO. See also Russell v.

Principi, 257 F.3d 815, 818-19 (D.C. Cir. 2001) (holding bonus

diminished as result of performance evaluation is adverse action

with respect to Title VII plaintiff alleging lesser performing

colleague received better evaluation and, therefore, larger

bonus). So, too, here; though performance awards are indeed

optional with the employer, the record shows the Board had

opted to give Weber an award in each of the three years

preceding 1998, the year in which she complained of

discrimination and received no such award.

In 1998, Weber did receive a “special act award” of time off

but that does not diminish the significance of her allegation that

she was discriminatorily denied a performance award for the

1997-98 rating period. But for possible retaliation by the Board,

Weber might have received both a performance award and a

special act award, as she did in 1995. Moreover, the two

performance evaluations that Weber challenged, though they

may not, as the district court said, be “adverse in an absolute

sense,” do qualify as adverse actions insofar as they resulted in

her losing a financial award or an award of leave, because a

reasonable jury could conclude that such a loss “could well

dissuade a reasonable worker from making or supporting a

charge of discrimination.” Burlington, 126 S. Ct. at 2409. We

therefore remand this aspect of the case for the district to

determine whether Weber proved her allegation of retaliation

with respect to her nonreceipt of performance awards in 1998

and 1999.

C. Pretext

In order to prove the Board’s explanations for alleged acts

of discrimination or retaliation are pretextual, Weber must show

“both that the reason was false, and that discrimination [or

retaliation] was the real reason.” See St. Mary’s Honor Ctr. v.

12

Hicks, 509 U.S. 502, 515 (1993). The district court held that

Weber failed to show the Board’s explanations for numerous

alleged acts of discrimination or retaliation were false or that the

real reason was discriminatory or retaliatory.

1. Direct Assignments to Support Staff

The Board “withdrew [Weber’s] ability to directly assign

work to the secretarial staff.” Weber points to a memorandum

from Toner in which he directed that “all requests from [Weber]

for staff support assistance are to go through Mary Ebron as

office manager or in her absence to me.”

In response the Board relies upon Toner’s sworn

declaration, in which he explained that he took this step because

Weber had shown poor judgment in asking one staff member to

type a sensitive memorandum regarding another staff member

who worked at a desk nearby. In addition, he said, four of the

16 members of the support staff had complained about how

Weber had treated them before Toner restricted her ability to

assign tasks to them.

Weber counters that Toner did not restrict her access to

support staff until she made her informal complaint to the OEEO

— timing that Weber argues gives rise to an inference of

retaliation. In his declaration, however, Toner said he had

delayed confronting Weber in order to consult with the Board

about how best to deal with her lapse in judgment. Weber

offered no evidence to cast doubt upon Toner’s explanation or

to show the real reason for limiting her ability to assign tasks to

support staff was discriminatory or retaliatory.

2. Access to Information

Weber alleged the Board left her out of meetings, thereby

13

denying her access to information necessary to do her job. She

points to an email she wrote (apparently to Messrs. Heltzer and

Toner) asking about new procedures for handling certain types

of cases, which Heltzer had discussed in a meeting with the legal

clerks. As the Board points out, Heltzer responded to that email,

explaining those new procedures to Weber and others. In reply

Weber cites her statement of undisputed material facts, in which

she says the Board “isolated her and took measures [to] restrict

from her information within the Office of the Executive

Secretary.” This statement simply does not show that Heltzer

refused to provide Weber with the information necessary to do

her job, and their exchange of emails suggests the opposite.

3. Access to Board Offices

Weber alleged Toner “denied [her] access to Board

Members, Chief Counsels, Deputy Chief Counsels, Board

supervisors, and Board staff.” Toner explained that he did so

because Weber had shown “extremely poor judgment in her

dealings with Board members.” Specifically, Toner said

Chairman Gould had told him Weber had served as his “spy” in

the Office of the Executive Secretary and was reporting

information to Gould regarding other Board members. Weber

responds that Gould, in a sworn affidavit of his own, denied

Toner’s allegations, claiming instead he told Toner that Weber

was not his spy but his “eyes and ears” and that he relied upon

her to advise him “about the operations of the Board i.e. how it

was functioning and how it should be functioning in connection

with her realm of responsibility.” The terminological quibble is

irrelevant; Toner believed it “inappropriate” for Weber to act as

Gould’s “eyes and ears” and to report to him the activities of

other Board members; accordingly he restricted her access to

certain offices. Weber produced no evidence tending to show

that Toner’s explanation was false or that his real reason was

discrimination or retaliation.

14

4. Board Agenda Meetings

Weber alleged that Toner “bypassed [her] for participation

in agendas.” Toner countered in his declaration: “To my

knowledge, Ms. Weber never regularly attended Board agenda

... meetings .... I did nothing whatsoever to limit Ms. Weber’s

attendance at such meetings.” In reply, Weber cites her

statement of undisputed material facts, in which she stated that

she was not permitted to attend Board agenda meetings,

although her predecessors as the Associate Executive Secretary

with the most seniority had done. Weber offers nothing,

however, to suggest that she had previously attended such

meetings or that Toner’s denial that he limited her participation

is false and therefore has failed to demonstrate pretext.

5. “C Cases”

Weber alleged the Board took away her responsibility for

handling letters in unfair labor practice cases, known as “C

Cases,” that came to the Board on a stipulated record. Toner

said he did “not recall Ms. Weber having responsibility for

sending out” letters “informing the parties of scheduling and

other matters” in such cases, and she “generally did not perform

this duty.” Toner believed other employees, perhaps staff in the

Solicitor’s Office, had handled that task.

In response, Weber produced a two-sentence letter she sent

to two lawyers in 1998, informing them the Board had “received

the stipulation of facts executed by all parties” and it “will be

forwarded now to the Board for its consideration.” Weber also

produced a statistical analysis of the number of “C cases” filed

and how quickly the Board processed them.

Weber’s evidence does not show the Board’s explanation is

15

false. A single exemplar of a letter from Weber to the parties

regarding a “C case” is not inconsistent with Toner’s

recollection that Weber was not “generally” responsible for

sending letters to parties in “C cases” with a stipulated record.

6. “Superpanel Cases”

Weber alleged that Toner “removed from [her] the duties of

handling of superpanels.” The Board asserts Weber was and

continued to be responsible for “monitoring” superpanel cases,

but never had been responsible for “handling” them, by which

the Board means she did not attend superpanel meetings, take

notes of the proceeding, or follow up to make sure decisions

were issued on time. Toner explained that either Hollace Enoch

or he performed those tasks. Weber points to Toner’s evaluation

of her work for 1996-97, in which he said “she has done an

outstanding job in monitoring ... superpanel cases,” but that is

obviously consistent with Toner’s explanation. Thus, Weber

failed to show she ever did anything other than monitor

superpanel cases, and hence failed to demonstrate the Board’s

version of events was false.

7. Case Status Reports

Weber also alleged the Board “removed from [her] the

duties of preparation of case status lists.” Toner acknowledges

having taken away Weber’s responsibility for preparing certain

case status reports in 1995, when he first became Executive

Secretary — well before Weber filed her informal complaint —

and explains that he did this so he would be familiar with the

cases pending before the Board, an explanation Weber does not

appear to contradict. Toner also points out that Weber

continued to have responsibility for preparing certain statistical

reports regarding cases pending before the Board.

16

Weber responds that responsibility for “preparation of the

substantive case lists,” apparently the particular responsibility

with respect to case status reports about which Weber

complained, was reassigned to Heltzer, in proof of which she

provides examples of such lists prepared by him. Missing from

the record, however, is any evidence that Weber ever had

responsibility for preparing “substantive case lists,” an

evidentiary gap consistent with Toner’s explanation that after

1995, Weber had responsibility for preparing only “statistical

reports.” Weber therefore failed to show the Board’s

explanation is false.

8. “R Cases”

Weber alleged the Board “removed from [her] the duties of

handling representational matters.” In his declaration, Toner

said Ms. Enoch generally handled “R cases” and “Ms. Weber

rarely got involved.” In response, Weber cited only an

unauthenticated and therefore inadmissible note she wrote to

Toner purporting to confirm that Toner had said she was “not to

handle [her] R case procedural matters, but to turn them over to

Hollace Enoch.” Because Weber provided no admissible

evidence that she ever had the duty of handling “R Cases,” she

failed to rebut the Board’s explanation.

III. Conclusion

We reverse the judgment of the district court dismissing

Weber’s claim that the Board impermissibly passed her over in

selecting a new Deputy Executive Secretary, and remand this

matter for the district court to adjudicate the merits of that claim.

We also reverse the district court’s judgment of dismissal with

respect to her 1998 and 1999 evaluations, and remand for the

district court to determine whether Weber proved her allegation

that the Board retaliated against her by twice failing to give her

17

a performance award. The judgment of the district court on the

merits of Weber’s other claims is affirmed.

So ordered.