Vickers v. Powell

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 14, 2007 Decided July 6, 2007

No. 06-5016

CYNTHIA J. VICKERS,

APPELLANT

v.

DONALD E. POWELL, CHAIRMAN, FEDERAL DEPOSIT

INSURANCE CORPORATION,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 03cv00174)

Richard L. Swick argued the cause for appellant. With

him on the briefs were David H. Shapiro and Ellen K. Renaud.

Marian L. Borum, Assistant U.S. Attorney, argued the

cause for appellee. With her on the brief were Jeffrey A. Taylor,

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

Michael J. Ryan, Assistant U.S. Attorney, entered an

appearance.

Before: ROGERS, TATEL and GRIFFITH, Circuit Judges.

Opinion for the Court filed by Circuit Judge GRIFFITH.

2

GRIFFITH, Circuit Judge: Appellant Cynthia Vickers

claims that the Federal Deposit Insurance Corporation (“FDIC”)

wrongfully terminated her employment. We review the district

court’s grant of summary judgment against Vickers on all her

claims and affirm its decision that she was not the victim of

illegal retaliation and discrimination, but vacate the decision

granting summary judgment for the FDIC on her hostile work

environment claim. We also reverse its decision that the Merit

Systems Protection Board (“MSPB” or “Board”) was not

arbitrary and capricious when it failed to explain why Vickers’

refusal to sign a medical release form that did not protect her

privacy interest was a firing offense.

I.

A. Background

Cynthia Vickers is an African-American woman who

worked as a federal law enforcement officer since 1984 and as

a criminal investigator in the Atlanta office of the FDIC from

1991 until her dismissal in 2001. By all accounts, Vickers had

a strained relationship with her direct supervisor at the FDIC,

Dana Bedwell, the Special Agent in Charge (“SAC”) of the

Atlanta office. On October 31, 2000, there was an unpleasant

workplace exchange between the two. Vickers told Bedwell that

she would be out of the office for most of the next week

conducting investigations and would miss the full week after

that for medical treatment. Already concerned about the way

Vickers was spending her time, Bedwell asked her how many

interviews each upcoming investigation would require. Vickers

could not tell him on the spot and, in frustration, accused

Bedwell of micromanaging her work. The discussion became

heated, and both Bedwell and Vickers raised their voices.

Vickers stormed out of the office, saying “I don’t need this” and

3

“I’m out of here.” On the way out, she gave a secretary her

government identification and cellular phone. The next day,

Vickers’ husband came to the office and turned in her

government credit card, office keys, and a laptop computer. The

following day, November 2, 2000, Bedwell sent Vickers a letter

that gave his account of the argument and granted her four hours

of administrative leave for the time she left work that day. The

letter also put Vickers on notice that she was absent without

authorized leave and warned her that if she did not return to

work by November 6, 2000, Bedwell would begin termination

proceedings against her. Vickers returned to the office on

November 6, not to work, but to hand Bedwell a letter

requesting six months leave without pay to resolve the “mental,

emotional, and physical anguish” caused by her employment at

the FDIC. The FDIC granted her request. Sometime in

November, Vickers spoke with an Equal Employment

Opportunity (“EEO”) counselor at the FDIC and even filed a

complaint with the Equal Employment Opportunity Commission

alleging various discriminatory acts against her. The record tells

us nothing about her conversation with the counselor, the

content of her complaint, or its disposition.

For the next five months, Vickers was treated for severe

depression. On March 20, 2001, she gave the FDIC a letter from

her psychiatrist stating that she would be able to return to work

on May 1, 2001. In a letter dated March 23, 2001, Bedwell

notified Vickers that before she could be allowed to return to

work after an illness, she was required pursuant to 5 C.F.R.

§ 339.3011 to successfully complete a medical examination at

1

The regulation provides that:

(b) Subject to § 339.103 of this part, an agency may

require an individual who has applied for or occupies

a position which has medical standards or physical

4

the U.S. Public Health Services (“PHS”) on April 9 and 10,

2001. Vickers did not contest this requirement and submitted to

the examination, but, acting on the advice of counsel, refused to

sign either of the two forms that authorized the release of her

medical information because, according to Vickers, they lacked

sufficient safeguards to protect her privacy, especially in light of

office rumors about her previous medical treatments. One of the

forms, the Release Form, was a general medical release that

authorized the recipient to release medical information to

whomever was listed on the form. The second release, the Exam

Form, was to be completed as part of Vickers’ medical

examination and authorized the recipient to release information

pertinent to the exam. On April 18, 2001, acting-SAC Thomas

McDade, who had replaced Bedwell after his March 2001

retirement, sent Vickers a letter demanding that she return to the

PHS to complete the required paperwork. The letter warned that

failure to do so would “be grounds for disciplinary action up to

requirements or which is part of an established

medical evaluation program, to report for a medical

examination:

(1) Prior to appointment or selection

(including reemployment on the basis of full

or partial recovery from a medical

condition);

(2) On a regularly recurring, periodic basis

after appointment; or

(3) Whenever there is a direct question about

an employee’s continued capacity to meet

the physical or medical requirements of a

position.

5 C.F.R. § 339.301(b).

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and including removal.” Vickers again refused to sign either

form.

Assistant Inspector General for Investigations (“AIGI”)

Samuel Holland, who was “designated the agency official

authorized to make the final decision in this matter,” made the

decision to fire Vickers effective December 14, 2001, and gave

four reasons for doing so: (1) she showed disrespect to Bedwell

during their October 31, 2001 meeting; (2) she failed to provide

the information regarding her work that Bedwell requested in

that meeting; (3) she failed to sign the releases, which were a

necessary part of the required medical examination; and (4) she

failed to follow McDade’s instructions to return to the PHS to

sign the releases. Letter from Samuel Holland, Assistant

Inspector General for Investigations, FDIC, to Cynthia Vickers

(Dec. 6, 2001).

B. Prior Proceedings

We have commented before on the “extremely

complicated” interplay between the two statutory schemes that

govern the process by which a civil servant may challenge an

adverse employment action when she claims that she was not

only treated unfairly but in violation of her civil rights. See

Butler v. West, 164 F.3d 634, 638-39 (D.C. Cir. 1999). This

case illustrates the point. The Civil Service Reform Act of 1978,

Pub. L. No. 95-454, 92 Stat. 1111 (codified as amended in

sections of 5 U.S.C.), grants civil servants like Vickers a

statutory right to appeal adverse employment actions to the

Merit Systems Protection Board. Before the Board, the

employer must demonstrate that its reasons for firing the civil

servant are supported by a preponderance of the evidence, see 5

U.S.C. § 7701(c)(1)(B), and that the penalty imposed was

reasonable, see Douglas v. Veterans Admin., 5 M.S.P.B. 313

(1981). The employee must prove any affirmative defenses by

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a preponderance of the evidence. See 5 C.F.R.

§ 1201.56(a)(2)(iii). Vickers appealed her discharge to the

Board in January 2002. She denied any wrongdoing and

countered the FDIC’s accusations with affirmative defenses that

her termination was the result of unlawful sexual and racial

discrimination and retaliation for having engaged in EEO

activities. An administrative law judge (“ALJ”) took evidence,

heard arguments, and upheld the FDIC’s firing of Vickers. See

Vickers v. FDIC, No. AT-0752-02-0233-I-2 (M.S.P.B. Dec. 9,

2002) (“MSPB Decision”). The ALJ found that Vickers failed

to follow Bedwell’s instructions to update him on her cases and

the later instruction from McDade to sign the medical releases,

id. at 12-13, but rejected the FDIC’s charge that Vickers was

disrespectful to Bedwell. Because Bedwell had raised his voice

during the argument, the ALJ found “that her responses and

leaving the meeting were not acts of disrespect, but rather a

spur-of-the-moment, emotional reaction to [Bedwell’s] failure

to maintain his own professionalism.” Id. at 4.

Significantly for our analysis, the ALJ did not fault

Vickers for her refusal to sign one of the medical release

forms—the Release Form—because it “was blank as to the name

of the doctors/clinics [to whom] these forms would be sent and

to whom the information would be released,” id. at 7, and

“Holland testified that he would not order an employee to sign

a form that did not say to whom the information would be

released,” id. at 10. The ALJ did fault Vickers, however, for her

refusal to sign the other medical release form—the Exam

Form—because in the ALJ’s view it expressly limited the PHS

to making inquiries about Vickers medical history of “doctors,

hospitals, or clinics she mentioned in answering the questions on

the form” and it provided that any medical information collected

could only be released “to the agency’s designated point of

contact on a need-to-know basis.” Id. at 10. The ALJ was

further swayed by the fact that Vickers “had previously signed

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the [same] release on the Exam Form on January 21, 2000.” Id.2

The ALJ rejected Vickers’ affirmative defenses that she

was fired because of her race and gender and in retaliation for

her EEO activities. As to her discrimination defense, the ALJ

held that Vickers “presented no direct evidence that reflects

directly the discriminatory attitude and bears directly on her

removal.” Id. at 13 (emphasis in original). The ALJ rejected

Vickers’ retaliation defense because she had not provided

sufficient evidence demonstrating that her firing was done in

retaliation for her EEO activities. Id. at 22.

Although Board decisions are generally reviewed by the

Court of Appeals for the Federal Circuit, see 5 U.S.C.

§ 7703(b)(1), “mixed cases” that involve both MSPB appeals

and discrimination claims under Title VII of the Civil Rights Act

of 1964 (“Title VII”), as amended, 42 U.S.C. § 2000e et seq., are

reviewed in federal district court, see 5 U.S.C. § 7703(b)(2),

which is where Vickers brought her claims. Vickers alleged that

the MSPB’s decision “was arbitrary, capricious, contrary to

government law and regulation, and not supported by substantial

evidence.” Am. Compl. ¶ 20(d). She also alleged that the FDIC

committed three Title VII violations: (1) retaliation for protected

EEO activities; (2) discrimination; and (3) creating a hostile

work environment.

The district court granted the FDIC’s motion for

summary judgment against Vickers on all of her claims. Vickers

v. Powell, Civ. No. 03-174, 2005 WL 3207775 (D.D.C. Nov. 21,

2005). The court determined that the MSPB decision was

2

Neither the ALJ’s reference to this earlier signing of the

Exam Form nor any other part of the record reveals the circumstances

surrounding this prior physical examination.

8

neither arbitrary nor capricious and was supported by substantial

evidence. Id. at *15-25. The district court also rejected

Vickers’ Title VII claims. As to her retaliation claim, the

district court determined that Vickers “failed to meet her burden

of showing that a reasonable jury could conclude that she was

terminated due to retaliation” because she did not provide

sufficient evidence demonstrating that the FDIC’s legitimate,

non-discriminatory justification for her firing was pretext. Id. at

*28 (citing Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1290 (D.C.

Cir. 1998) (en banc)). Although the district court failed to

expressly address Vickers’ discrimination claim, its review of

her MSPB appeal included a rejection of her allegation raised as

an affirmative defense before the ALJ that she was unlawfully

fired because of her race and gender. The district court found

after a de novo review that Vickers failed to “produce evidence

showing the described [discriminatory] events bore directly on

her termination.” Id. at *27. The district court also rejected

Vickers’ hostile work environment claim because it found that

most of Vickers’ allegations were untimely and the few timely

incidents were insufficient to support a hostile work

environment claim. Id. at *32-35. Having lost each of her

claims, Vickers now appeals that decision to this Court.

II.

Like her claims in the district court, Vickers’ appeal

presents two legally-distinct but factually-related issues. First,

we must decide whether the MSPB’s decision affirming

Vickers’ firing was arbitrary, capricious, an abuse of discretion,

or unsupported by substantial record evidence. 5 U.S.C.

§ 7703(c). We do not, however, defer to the district court. See

Fogg v. Ashcroft, 254 F.3d 103, 112 (D.C. Cir. 2001) (noting

that district court assessment “drops out of the multiple layers of

deference”); Novicki v. Cook, 946 F.2d 938, 941 (D.C. Cir.

1991) (“We do not defer to a district court’s review of an agency

9

adjudication any more than the Supreme Court defers to a court

of appeals’ review of such a decision.”). Next, we review the

district court’s grant of summary judgment against Vickers’

Title VII claims. We conduct that review de novo. See, e.g.,

Islamic Am. Relief Agency v. Gonzales, 477 F.3d 728, 732 (D.C.

Cir. 2007). We “view the evidence in the light most favorable

to [Vickers], draw all reasonable inferences in her favor, and

eschew making credibility determinations or weighing the

evidence.” Czekalski v. Peters, 475 F.3d 360, 363 (D.C. Cir.

2007).

A. The MSPB Decision

Vickers challenges two aspects of the MSPB’s decision:

whether the determination affirming her firing was arbitrary,

capricious, or unsupported by substantial evidence and whether

that penalty was an appropriate sanction and consistent with the

MSPB’s precedent. Because we conclude that the Board’s

affirmation of the FDIC decision to fire Vickers was arbitrary

and capricious, we need not reach her challenge to the penalty.

The Board failed to explain why Vickers was within her rights

to refuse to sign the Release Form because it did not disclose

where her medical records might be sent, but wrong to refuse to

sign the Exam Form, which had the same flaw.

The MSPB rejected the FDIC’s charge that Vickers

wrongly refused to sign the Release Form because the Board

found it “was blank as to the name of the doctors/clinics [that]

these forms would be sent and to whom the information would

be released.” MSPB Decision at 7. The relevant portion of the

Release Form provides, “[Recipients of the Release] are hereby

authorized to furnish information from the record of the

individual named below [Vickers] which is in the record of your

facility, and release it to: [BLANK BOX].” The MSPB

reasonably concluded that Vickers was justified in her refusal

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to sign such an open-ended grant of permission to release

confidential medical information. But the Exam Form that the

Board faulted Vickers for not signing offered her no more

protection:

I [Vickers] certify that I have reviewed the

foregoing information supplied by me and that it

is true and complete to the best of my

knowledge. I authorize any of the doctors,

hospitals, or clinics mentioned on these forms to

furnish the Government a complete transcript of

my medical record for purposes of processing

this exam. I authorize the release of all medical

information to the Federal Occupational

Health/Law Enforcement Medical Program and

on a need to know basis, the designed [sic]

(Agency/Name) point of contact.

Id. at 6-7 (citation omitted). We see no significant distinction

between the privacy protections in each form that would justify

the Board concluding that Vickers was free to refuse to sign one

but committed a firing offense for refusing to sign the other.

Like the Release Form, the Exam Form was blank as to whom

the information would be released, and Holland, who ultimately

made the decision to fire Vickers, reasonably testified that “he

would not order an employee to sign a form that did not say to

whom the information would be released.” Id. at 10. The Exam

Form noted only that Vickers’ medical records could be released

to “(Agency/Name) point of contact.” The generic term

“Agency/Name” does not provide adequate protection for

Vickers’ confidential medical records. To protect her privacy,

it should have specified the particular agency or point of

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contact.3 The MSPB thought the form provided sufficient

protection because it “identified to which providers request for

documents would be sent and to whom the responsive

documents would be provided.” Id. at 10. That does not

describe the Exam Form, which failed to specify what agency or

which point of contact would have access to Vickers’

confidential medical records. Because the MSPB found that a

similar failing in the Release Form justified Vickers’ refusal to

sign, it should have come to the same conclusion for her refusal

to sign the also-flawed Exam Form. That it did not was an

3

The record contains some suggestion that the Exam Form

Vickers refused to sign actually designated the FDIC-OIG (Office of

Inspector General) as the entity to which her medical information

would be released. Such a designation would have been a sufficient

safeguard for her privacy. But the copy of the Exam Form submitted

to the Court and the MSPB is illegible, and the language quoted by the

MSPB (and cited by the district court) was not from the actual form

Vickers refused to sign. It was from a copy of the form in which none

of the blanks had been filled in. See MSPB Decision at 7 n.5 (noting

that the Exam Form language came from “a blank copy of the Exam

Form . . . on which [Vickers] refused to complete the medical release,”

and that the blank form was submitted because the form Vickers

refused to sign was “not legible”). Vickers’ attorney submitted a letter

to the FDIC that indicated the form Vickers refused to sign was

complete and did not have the blanks that so trouble us. See Letter

from Joleen Payeur Olsen, Attorney to Cynthia Vickers, to Janet

Welch, Employment Relations Specialist, FDIC, at 2 (April 27, 2001)

(quoting from Exam Form that information would be released “on a

need to know basis, the designated FDIC-OIG point of contact”)

(emphasis added). When questioned at oral argument, however, the

government maintained that the Exam Form Vickers refused to sign

had not designated to whom the information would be released beyond

“(Agency/Name) point of contact.” The government dismissed as

“mistaken” the concession offered by Vickers’ counsel in her April

2001 letter. Recording of Oral Argument at 23:30.

12

arbitrary and capricious decision that the district court should

not have affirmed.

The MSPB further erred by finding that Vickers’ earlier

signing of another medical release left her without an excuse for

refusing to sign the Exam Form. See MSPB Decision at 10

(finding Vickers’ objection to signing the Exam Form

“particularly troubling because, without incident, she previously

signed the release on the Exam Form on January 21, 2000”).

The earlier form provided that information collected could only

be released to the FDIC Office of Inspector General point of

contact. That limitation is simply not part of the form Vickers

justifiably refused to sign in April 2001. The Board’s failure to

acknowledge the obvious difference between the two release

forms was arbitrary and capricious. Because we fault the Board

for requiring Vickers to sign the Exam Form, we need not reach

the FDIC’s other charges. We remand this matter to the district

court with instructions to further remand the matter to the MSPB

to determine whether the remaining allegations constitute an

independent basis for Vickers’ firing.

B. Title VII Claims

Vickers also appeals the district court’s decision to grant

summary judgment for the FDIC on her Title VII claims. Title

VII prohibits federal agencies from workplace “discrimination

based on race, color, religion, sex, or national origin.” 42

U.S.C. § 2000e-16(a). The familiar McDonnell Douglas

framework governs its application for discrimination and

retaliation claims. See, e.g., Chappell-Johnson v. Powell, 440

F.3d 484, 487 (D.C. Cir. 2006) (noting that “the Supreme Court

set out a burden-shifting approach [in McDonnell Douglas] to

employment discrimination claims in cases where the plaintiff

lacks direct evidence of discrimination”); McKenna v.

Weinberger, 729 F.2d 783, 790 (D.C. Cir. 1984) (“The

13

McDonnell Douglas framework is also applicable to claims of

retaliatory dismissal.”). The successful plaintiff in a Title VII

case must first establish a “prima facie case of racial

discrimination,” McDonnell Douglas Corp. v. Green, 411 U.S.

792, 802 (1973), by showing 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.” Chappell-Johnson, 440 F.3d at 488 (quoting

Brown v. Brody, 199 F.3d 446, 452 (D.C. Cir. 1999)). The

burden then shifts to the employer “to articulate some legitimate,

nondiscriminatory reason” for its actions. McDonnell Douglas,

411 U.S. at 802. In reply, the plaintiff must show that the

employer’s proffered justification is mere pretext and thus a

“coverup for a racially discriminatory decision.” Id. at 805.

After the employer offers a non-discriminatory

justification for its actions, the McDonnell Douglas framework

falls away, and we must determine whether a reasonable jury

could “could infer discrimination from the combination of (1)

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

presents to attack the employer’s proffered explanation for its

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

be available to the plaintiff.” Aka, 156 F.3d at 1289 (reviewing

St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507-11 (1993)).

In this case, both Vickers’ retaliation and discrimination claims

fail because of the relative weakness of her prima facie cases

and because she has not shown that the FDIC’s justification for

her firing—her failure to follow instructions and complete a

medical examination—was mere pretext for discrimination.

1. Retaliation Claim

We begin with Vickers’ claim that the FDIC fired her in

retaliation for her complaints of sex- and race-based

discrimination. See 42 U.S.C. § 2000e-3. To make out a prima

14

facie case of illegal retaliation, Vickers must show that “(1) she

engaged in statutorily protected activity; (2) her employer took

an adverse personnel action against her; and (3) a causal

connection exists between the two.” Carney v. Am. Univ., 151

F.3d 1090, 1095 (D.C. Cir. 1998). Vickers alleges her discharge

was in retaliation for two complaints she made to FDIC officials

about the alleged discrimination she experienced. The first was

a conversation she had with Holland on September 29, 2000, in

which she allegedly complained of the office’s sexist and racist

environment. Holland acknowledged that the conversation took

place, but denied that Vickers raised any concerns about

discrimination. Vickers also contacted an EEO counselor in

November 2000 and filed an EEO complaint shortly thereafter.

As we noted above, the record tells only that the contact

occurred and that the complaint was filed. We know nothing of

the content of either or the disposition of the complaint. Like

the district court, we assume arguendo that Vickers alleged a

prima facie case of retaliation and that the burden shifted to the

FDIC to articulate a legitimate, non-discriminatory reason for

her termination, which it did. According to the FDIC, Vickers

“failed to complete her medical examination; failed to sign the

necessary release forms, preventing an independent evaluation

of whether [she] was fit to [sic] duty; and failed to follow the

[FDIC’s] orders.” Vickers, 2005 WL 3207775, at *28.

In challenging the district court’s decision that she had

not provided sufficient evidence demonstrating that the FDIC’s

proffered justification was pretext, Vickers argues that the court

ignored “factors that raise an inference of retaliatory motive by

Holland.” Appellant’s Br. at 29. She asserts that the fact that

Holland claims they did not speak of discrimination during their

September 2000 conversation and was allegedly annoyed by her

complaints permits “a reasonable juror [to] infer that Holland

lied about his conversation to hide his retaliatory motive.” Id.

at 30. Vickers also asserts that Holland’s decision to impose the

15

highest possible penalty, termination, could also be reasonably

seen as retaliation. Id. at 31. We are not persuaded. Although

Vickers baldly asserts that Holland might be lying to hide his

retaliatory motive, she failed to provide any evidence indicating

why Holland, who ultimately made the decision to terminate

Vickers, might have wanted to see her removed. He was not

involved in any of the events that preceded Vickers’ termination,

nor did he participate in any of the alleged incidents that make

up Vickers’ hostile work environment claim. Instead, as

Assistant Inspector General for Investigations, Holland had been

given the authority to review the allegations against Vickers and

make the ultimate decision to keep her or fire her. Without more

than what Vickers has offered as evidence, we cannot see how

a reasonable jury might find a retaliatory motive at work in

Holland’s decision. Vickers’ retaliation claim is further

undermined by the fact that even though it was Holland who

fired her, Bedwell was the focus of her discrimination claims.

Vickers failed to put on any evidence to show that Holland’s

decision was in any way influenced by Bedwell, who had retired

before Vickers’ refusal to sign the releases in April 2001 that

triggered her firing. See, e.g., Griffin v. Wash. Convention Ctr.,

142 F.3d 1308, 1311-12 (D.C. Cir. 1998) (holding that

subordinate’s bias is only relevant “where the ultimate decision

maker is not insulated from the subordinate’s influence”).

Nor can Vickers’ Title VII claims draw support from our

decision to remand the MSPB decision for further review of the

limited issue why Vickers was fired for refusal to sign the Exam

Form. That we have raised the question that the FDIC may have

unfairly fired Vickers does not suggest that the decision to do so

was based on race or gender discrimination. There is simply no

persuasive evidence that Vickers was the victim of such

unlawful bias, and she has failed to show that her firing for her

refusal to sign the Exam Form was somehow an attempt to cover

for prohibited behavior. The mere possibility of an allegation of

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a violation of Title VII without supporting evidence does not

create a presumption of illegality against Vickers’ firing. She

must make a showing in support of her discrimination claims.

We have previously recognized that there is a distinction

between discrimination claims that are wanting, as here, and the

fact that a termination may not have been fair. See Forman v.

Small, 271 F.3d 285, 291 (D.C. Cir. 2001) (“Consistent with the

courts’ reluctance to become involved in the micromanagement

of everyday employment decisions, the question before the court

is limited to whether [the plaintiff] produced sufficient evidence

of . . . discrimination, not whether he was treated fairly . . . .”)

(citations omitted); cf. Carpenter v. Fed. Nat’l Mortg. Ass’n, 165

F.3d 69, 72 (D.C. Cir. 1999) (“If the plaintiff explodes the

phony reason with evidence that simply supports an unsavory

but lawful alternative reason . . . , the plaintiff cannot get to the

jury.”). Our decision to grant the petition for review of the

MSPB proceeding therefore does not affect the Title VII

analysis.

Having thus looked to the categories of evidence

highlighted by Aka, we conclude that a reasonable jury could not

infer discrimination from Vickers’ allegations. Vickers’ prima

facie case is relatively weak because it is not clear that there

exists a causal connection between her EEO activities and

Holland’s decision to fire her. She has also failed to rebut the

FDIC’s legitimate, non-discriminatory justification for her firing

with any evidence to support her allegations of unlawful

discrimination. Vickers never argued that the various

discriminatory acts alleged in her hostile work environment

claim discussed below were further evidence of pretext. The

district court therefore correctly determined that Vickers “failed

to meet her burden of providing sufficient evidence for a

reasonable jury to conclude that she was terminated due to

retaliation.” Vickers, 2005 WL 3207775, at *29.

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2. Discrimination Claim

Vickers’ discrimination claim is based on alleged

“repeated harassment and criticism of [her] conduct,” up to and

including her removal, “that was not based on a fair appraisal of

her performance and conduct, but rather was the result of

unlawful discrimination based upon her race and sex.” Am.

Compl. ¶ 19(b). In making out her prima facie case of

discrimination, Vickers has alleged that she was the victim of

two adverse employment actions: unfair performance appraisals

and termination. But Vickers has shown no evidence that she

received a low performance appraisal. In fact, the only record

evidence shows that Vickers received the second highest

performance evaluation in the office in October 2000 and

received a $1,500 performance award for her performance in

1999-2000. Vickers, 2005 WL 3207775, at *10 (citing Def.’s

Stmt. of Mat. Facts ¶ 5; Pl.’s Response to Def.’s Stmt. ¶ 5). A

reasonable jury could not conclude that her performance

appraisal was tainted by discrimination. As to her firing, even

if we assume arguendo that Vickers has established a prima

facie case of discrimination, her claim fails for the same reason

her retaliation claim failed. As we set forth above, she has

established a weak prima facie case at best and provided

insufficient evidence to demonstrate that the FDIC’s proffered

justification for her removal was pretext for discrimination.

3. Hostile Workplace Claim

Vickers’ final Title VII claim is that she was subjected

to a hostile work environment at the FDIC because of her sex

and race. “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.” Harris v. Forklift Sys., Inc.,

18

510 U.S. 17, 21 (1993) (quotation marks and citations omitted).

To determine whether a work environment is hostile, we look

“‘at all the circumstances,’ including 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.’” Faragher v. City of Boca Raton, 524 U.S. 775,

787-88 (1998) (quoting Harris, 510 U.S. at 23). In this case,

Vickers alleges thirteen incidents that make out her hostile work

environment claim:

1. In 1992 she “was ridiculed by her supervisor [Mike Mitchell]

because she attended the Women in Federal Law Enforcement

Conference (“WIFLE”) in Washington, D.C.” Vickers, 2005

WL 3207775, at *9.

2. She “was subject to unwanted and continuing conversations

about her [supervisor Mitchell’s] divorce and sexual

dysfunction” around 1993-1994. Id.

3. In 1995 or early 1996 she “was asked to assist her manager

[Mitchell] in going to the restroom by holding his genitals for

him.” Id.

4. In 1996 Mitchell “forced [her] to listen to sexist remarks

about a female coworker, including comments that this

co-worker’s ‘legs flew open’ at the sight of a photograph of her

abusive husband.” Id.

5. Vickers “was shocked when her supervisor [Mitchell] tricked

her into picking up a troll-like doll designed so that a large penis

fell from under the shirt when she picked it up” in 1995. Id.

6. In 1996 she “was singled out for rude, condescending and

often accusatory comments from [Bedwell] who showed no

19

respect for women or blacks, unless they were in a higher graded

position than he.” Id.

7. In 1998 Bedwell “repeatedly subjected her to intrusive and

embarrassing inquiries about personal and medical privacy for

no reason other than curiosity, including inquiries of other

female employees regarding her medical condition.” Id. After

objecting to these inquiries, she was accused of being

“hypersensitive.” Id.

8. She “was subjected to unjustly reduced performance

rating[s], most recently on her October 2000 performance

evaluation. When she objected to the ratings given her, and

therefore refused to sign the Performance Plan, she was

subjected to angry threats from [Bedwell].” Id. at *10.

9. In 1999 Vickers “was subjected to sexist comments in the

work place, including a statement by her supervisor to the

Atlanta Regional Agent staff, which at this point was about 12

(twelve) white men and Ms. Vickers to the effect, ‘hey, we’re all

men here.’” Id.

10. She “was subjected to constant derogatory comments made

towards women and minorities,” including a comment in

October 2000 by an instructor employed by the Federal Law

Enforcement Training Center “that a baton is a good weapon to

use, but depending on the circumstances a gun is a better

weapon because it eliminates problems, ‘like the Rodney King

case.’” Id.

11. In 1998 Vickers “was subjected to racial profiling jokes

including a comment that a white male could enter their building

unchallenged because ‘he didn’t fit the profile.’” Id.

12. In 1998 she overheard insulting remarks from behind a

20

closed door regarding “affirmative action when an

African-American was selected for a position and her white

coworkers suggested that he had been selected only because of

his race.” Id.

13. Vickers “was singled out for a requirement to provide

inordinate amounts of medical information to support requests

for leave.” Id.

Federal regulations bar discrimination claims that an

employee does not first bring to the attention of an agency’s

EEO counselor within forty-five days of the alleged conduct.

See 29 C.F.R. §§1614.105(a), 1614.107; Broderick v.

Donaldson, 437 F.3d 1226, 1232 (D.C. Cir. 2006). Vickers did

not contact an EEO counselor until November 9, 2000, which,

as the FDIC argues, would appear to bar from her claim any

incidents before September 25, 2000. But because “[h]ostile

environment claims are different in kind from discrete acts,” the

Supreme Court has noted that incidents constituting a claim

“occur[] over a series of days or perhaps years and, in direct

contrast to discrete acts, a single act of harassment may not be

actionable on its own.” Nat’l R.R. Passenger Corp. v. Morgan,

536 U.S. 101, 115 (2002). Because these acts may not all occur

within the filing period, the Supreme Court has held “[p]rovided

that an act contributing to the claim occurs within the filing

period, the entire time period of the hostile environment may be

considered by a court for the purposes of determining liability.”

Id. at 117. In other words, because of the unique nature of a

hostile environment claim, so long as at least one of the acts that

contributed to the hostile environment occurs within the filing

period, other acts that also contributed to the claim but that did

not occur within the filing period may also be considered.

The key inquiries then, for purposes of determining

which acts are time-barred and which are not, are “whether the

21

acts about which an employee complains are part of the same

actionable hostile work environment practice, and if so, whether

any act falls within the statutory [filing] time period.” Id. at 120.

We need not consider an alleged incident if it “had no relation

to the [other] acts, or for some other reason, such as certain

intervening action by the employer, was no longer part of the

same hostile environment claim.” Id. at 118. In Morgan, the

Supreme Court gave us guidance in making this determination

by approving the lower court’s method of asking whether the

conduct alleged “involve[d] the same type of employment

actions, occurred relatively frequently, and were perpetrated by

the same managers.” Id. at 120 (internal quotation marks and

citation omitted).

The district court, relying on Morgan and its progeny,

determined that alleged incidents 1-64 were not part of the

hostile work environment claim that was created by Bedwell, the

focus of Vickers’ claims, because each involved Mike Mitchell,

Bedwell’s predecessor and Vickers’ supervisor until 1996.

Vickers, 2005 WL 3207775, at *33. The district court

distinguished Mitchell’s actions from Bedwell’s by finding that

Mitchell was “alleged to have acted coarsely and to have made

statements with sexual conduct” while “the incidents attributed

to Mr. Bedwell involve the exchange of harsh words between

[Vickers] and Bedwell in the context of his exercise of normal

supervisory functions over [Vickers], such as administering

performance appraisals, inquiring into an employee’s use of sick

leave, and inquiring into time management of his subordinates.”

Id. (citation omitted).

4

The district court incorrectly attributed incident 6 to

Mitchell, but the FDIC noted in its brief that it involved Bedwell.

Appellee’s Br. at 39.

22

We disagree that the Mitchell allegations were so

different in kind that, as a matter of law, we can conclude that

they were not part of the same hostile work environment. The

line between Mitchell creating a hostile environment through

sexual conduct and his deputy-turned successor Bedwell

perpetuating the environment by condoning the same is not so

well-defined to say that the Mitchell and Bedwell acts have “no

relation” as required in Morgan. Morgan, 536 U.S. at 118. On

summary judgment, we consider not just Vickers’ allegations

but also other supporting evidence such as her response to

interrogatories, see Plaintiff’s Answers to Defendant’s First Set

of Interrogatories, Vickers v. Powell, Civ. No. 03-174 (D.D.C.

Nov. 15, 2004), which more fully describe the incidents on

which her claim is grounded. According Vickers the benefit of

all reasonable inferences, to which she is entitled as the non-

moving party on summary judgment, the Mitchell and Bedwell

incidents do not seem so obviously different in kind for us to

conclude that they are not related as a matter of law.

The Mitchell incidents can therefore be severed from the

Bedwell incidents only if we accord conclusive significance to

the change in management. But routine personnel actions such

as Mitchell’s retirement and Bedwell’s promotion cannot be the

type of “intervening action[s] by the employer” that would sever

the earlier incidents from the more recent incidents constituting

Vickers’ hostile environment claim. Id. Although we can easily

imagine circumstances in which a change in managers might

affect a hostile work environment claim, we see nothing in the

record that shows that Bedwell’s succession was in any way

intended to address the environment created by Mitchell’s

alleged improprieties. To the contrary, Vickers has alleged that

her harassment intensified after the change in management. Cf.

Isaacs v. Hill’s Pet Nutrition, Inc., 485 F.3d 383, 386 (7th Cir.

2007) (faulting district court for focusing on identity of two

harassers when both were employed by the defendant company

23

because “the entity responsible for complying with Title VII is

the employer, of which [the plaintiff] had just one”). We thus

conclude that the district court erred when it held that Mitchell’s

actions, as a matter of law, could not reasonably be considered

part of the same hostile work environment allegedly created by

Bedwell’s actions.

The district court also erred in determining which of the

Bedwell allegations could be considered to support Vickers’

hostile work environment claim. In determining whether any of

Vickers’ remaining allegations were time-barred after it

excluded the Mitchell allegations, the district court first

examined the three acts that took place within the filing period,

incidents 8, 10, and 13, to determine whether, taken as a group,

they could support a hostile work environment claim.

Concluding that they were by themselves “insufficient to

support a hostile work environment claim,” the district court

then held that the incidents outside the filing period “cannot be

revived under Morgan for reconsideration,” even if they could

make out a hostile work environment claim. Vickers, 2005 WL

3207775, at *35.

We disagree with the district court’s analysis that the

three alleged incidents that took place within the filing period

must, by themselves, make out a claim for a hostile workplace

before we can make the common sense observation that they

were part of a hostile work environment that includes earlier

acts. As we have already observed, the Supreme Court

addressed this issue in Morgan, see 536 U.S. at 120, and we

have previously held that “the timeliness of [plaintiff’s] hostile

work environment claim does not depend on whether the acts

that he alleged were discriminatory are actionable standing

alone.” Singletary v. District of Columbia, 351 F.3d 519, 527

(D.C. Cir. 2003). “Rather, all [the plaintiff] need demonstrate

is that ‘the acts about which [he] complains are part of the same

24

actionable hostile work environment practice.’” Id. (quoting

Morgan, 536 U.S. at 120); see also Gilliam v. S.C. Dep’t of

Juvenile Justice, 474 F.3d 134, 140 (4th Cir. 2007) (noting that

Morgan overturned Fourth Circuit precedent requiring incident

occurring within filing period to itself constitute a Title VII

violation before looking outside the filing period). Although in

Vickers’ case, the district court was correct that the three

incidents within the period were “insufficient to support a

hostile work environment claim,” Vickers, 2005 WL 3207775,

at *35, the Supreme Court has only required that they contribute

to the claim, not that they constitute the claim, see Morgan, 536

U.S. at 117.

Consistent with our precedent, we therefore remand this

issue to the district court to consider in the first instance whether

the allegations concerning Mitchell and Bedwell could

constitute a hostile work environment that would survive the

FDIC’s motion for summary judgment. See Singletary, 351 F.3d

at 528-29 (remanding case to district court for a “determination

of both the timeliness and the merits” of plaintiff’s claims after

determining that district court failed to apply the appropriate

limitations analysis under Morgan).

III.

For the foregoing reasons, we remand the MSPB appeal

to the district court with instructions to remand the case to the

Merit Systems Protection Board. We affirm the decision of the

district court granting summary judgment for the government on

Vickers’ retaliation and discrimination claims. We reverse the

district court’s judgment on the hostile work environment claim

and remand for further proceedings consistent with this opinion.

So ordered.