Steele v. Schafer

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 5, 2007 Decided August 1, 2008

No. 05-5430

CHERYL STEELE,

APPELLANT

v.

ED SCHAFER, SECRETARY OF AGRICULTURE,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 02cv00452)

S. Micah Salb argued the cause for appellant. With him on

the briefs were Richard H. Semsker and Julie Glass Martin-

Korb.

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: GARLAND and GRIFFITH, Circuit Judges, and

WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge GARLAND.

2

GARLAND, Circuit Judge: On this appeal, Cheryl Steele

contends that the district court wrongly dismissed her claims

against her former employer, the United States Department of

Agriculture, for creating a hostile work environment and

unlawfully retaliating against her in violation of Title VII of the

Civil Rights Act of 1964. We agree. We therefore reverse the

court’s grant of summary judgment against Steele on those

claims.

I

Steele is an African-American woman who worked as an

economist in the U.S. Department of Agriculture (USDA). She

alleges that the USDA -- principally through her supervisor,

James Johnson -- discriminated against her because of her race

in numerous ways, including: intentionally giving her an

incompetent assistant; falsely accusing her of misusing

government credit cards; unjustifiably denying her a promotion;

depriving her of credit for her work; interfering with her

professional development by excluding her from important

projects; and unreasonably denying her several cash awards.

Steele further alleges that, after she complained about her

discriminatory treatment, the Department retaliated against her

by, inter alia: giving her the lowest performance rating of her

career; awarding her the lowest performance bonus in her

branch and half the amount given to all white employees;

denying her a “special act award” in 1999; and denying her a

cash bonus that was given to every other member of her “Y2K”

team that prepared the Department’s technical systems for the

transition to the year 2000. Steele also asserts that the USDA’s

harassment forced her to resign in 2000, and that the Department

continued to retaliate against her after her resignation by falsely

contesting her unemployment benefits at the District of

Columbia Office of Unemployment Compensation.

3

After unsuccessfully pursuing administrative remedies,

Steele filed suit in the district court, asserting Title VII claims of

discrimination, a hostile work environment, retaliation, and

constructive discharge.1 The USDA moved for summary

judgment on all of the claims, and the court granted the motion.

See Order Granting Def.’s Mot. for Summ. J., Steele v.

Veneman, 1:02-cv-00452 (D.D.C. Sept. 28, 2005) (“Order”).

The district court first addressed the timeliness of Steele’s

claims under 29 C.F.R. § 1614.105(a)(1), which requires a

federal employee in the Executive Branch to “initiate contact”

with an Equal Employment Opportunity (EEO) Counselor in her

agency within 45 days of an allegedly discriminatory action.

The court noted a “discrepancy” in the record regarding the date

of Steele’s first contact with an EEO Counselor: different

documents stated that the initial contact occurred in January,

February, and June of 1999. Order at 9 n.3. The court adopted

the June date on the ground that it was the date that Steele

alleged “in her complaint and . . . admissions.” Id.

Accordingly, the court denied relief on those of Steele’s claims

that it found arose more than 45 days before June 18, 1999. Id.

at 11. The court also rejected Steele’s argument that otherwise

untimely claims could be included as part of a timely hostile

work environment claim. Id.

Next, the district court addressed the USDA’s contention

that Steele failed to state a prima facie case of discrimination or

retaliation because a number of the incidents she alleged did not

constitute “adverse employment actions.” Id. The court defined

an “adverse employment action” as “an action that results in

‘materially adverse consequences affecting the terms,

conditions, or privileges of employment.’” Id. (quoting Brown

1

The title of Steele’s complaint mentions “sex discrimination,”

but Steele pursues only claims of racial discrimination on appeal.

4

v. Brody, 199 F.3d 446, 457 (D.C. Cir. 1999)). Under that

definition, the court ruled that at least six incidents could not

constitute actionable discrimination or retaliation. Id. at 12.

Finally, the court granted summary judgment to the USDA

on Steele’s constructive discharge claim. The court explained

that “a constructive discharge claimant must show that (1) her

employer intentionally discriminated against her, (2) the

employer deliberately made her working conditions intolerable,

and (3) aggravating factors justified the claimant’s conclusion

that she had no option but to end her employment.” Id. at 14

(citing Carter v. George Wash. Univ., 180 F. Supp. 2d 97, 110

(D.D.C. 2001)). The court held that Steele could not prevail

because the record “contains no evidence” of “conditions that

were so intolerable, so aggravating, that any reasonable person

would have felt compelled to quit.” Id. at 15.

Without further specification, the district court entered final

judgment in favor of the USDA and dismissed the case. Steele

now appeals. Her briefs do not dispute the dismissal of her

discrimination and constructive discharge claims, see Oral

Argument Rec. 36:44, 37:00 (acknowledgment by Steele’s

counsel that she does not raise those claims on appeal), but do

challenge the district court’s rejection of her retaliation and

hostile work environment claims. We address those challenges

below.

II

This court reviews a district court’s grant of summary

judgment de novo. Waterhouse v. District of Columbia, 298

F.3d 989, 991 (D.C. Cir. 2002). Summary judgment may be

granted only if “there is no genuine issue as to any material fact

and . . . the movant is entitled to judgment as a matter of law.”

FED. R. CIV. P. 56(c). A fact is material if it “might affect the

5

outcome of the suit under the governing law,” and 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 v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

“[A]t the summary judgment stage the judge’s function is not

himself to weigh the evidence and determine the truth of the

matter but to determine whether there is a genuine issue for

trial.” Id. at 249. “Credibility determinations, the weighing of

the evidence, and the drawing of legitimate inferences from the

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

motion for summary judgment . . . .” Id. at 255.

Steele argues that the district court’s decisions regarding her

hostile work environment and retaliation claims rested on three

legal errors. We agree. First, in determining that several of

Steele’s claims were time-barred, the court failed to

acknowledge that a genuine issue of material fact existed as to

the date of Steele’s contact with an EEO counselor. Although

the district court’s opinion was oblique as to the scope of its

ruling, that date affects both Steele’s hostile work environment

and retaliation claims. Second, regarding Steele’s hostile work

environment claim, the court adopted a timeliness rule that is

inconsistent with the Supreme Court’s decision in National

Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002), and

as a consequence never reached the merits of that claim. Third,

the court applied a standard for retaliation claims that is

inconsistent with the Supreme Court’s decision in Burlington

Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006).

Although the government acknowledges that the district

court erred, it invites us to review the evidence de novo and

affirm on other grounds. We decline the invitation. In light of

the tangled record on appeal, we lack confidence that we have

all of the information necessary to conduct such a review.

6

In the following subparts, we present our analysis in more

detail. Part II.A addresses the district court’s error in granting

summary judgment with respect to the timeliness of certain of

Steele’s claims, notwithstanding the existence of a genuine issue

of material fact. Part II.B discusses the court’s adoption of an

erroneous timeliness rule for Steele’s hostile work environment

claim. Finally, Part II.C examines the court’s application of an

inapposite standard for evaluating Steele’s retaliation claims.

A

An employee of the federal government who believes that

she has been the subject of unlawful discrimination must

“initiate contact” with an EEO Counselor in her agency “within

45 days of the date of the matter alleged to be discriminatory.”

29 C.F.R. § 1614.105(a)(1); see Weber v. Battista, 494 F.3d 179,

182-83 (D.C. Cir. 2007); see also 42 U.S.C. § 2000e-16.

“Because timely exhaustion of administrative remedies is a

prerequisite to a Title VII action against the federal

government,” a court may not consider a discrimination claim

that has not been exhausted in this manner absent a basis for

equitable tolling. Stewart v. Ashcroft, 352 F.3d 422, 426 (D.C.

Cir. 2003); see Greer v. Paulson, 505 F.3d 1306, 1316-17 (D.C.

Cir. 2007).

The district court held that Steele’s first contact with an

EEO Counselor was June 18, 1999, and that those of her claims

involving incidents that took place more than 45 days before that

date were therefore barred. Steele’s complaint does state that,

“[f]rom June 18, 1999, to April, 2000, . . . Steele took issues

regarding discriminatory treatment . . . to an EEO counselor at

defendant agency.” Compl. ¶ 6. But the complaint does not say

that this was the only period in which she contacted a counselor,

and, as the district court noted, other documents in the record

create a “discrepancy” regarding the first contact date. Order at

7

9 n.3. Steele’s admissions to the USDA, submitted as an exhibit

to the government’s motion for summary judgment, state:

“[Steele] contacted an EEO Counselor for the first time in

January, 1999, but did not pursue filing a formal complaint at

that time. The Plaintiff contacted an EEO Counselor again in

June 1999 to file a formal complaint.” Pl.’s Admis. ¶ 8.

Moreover, the USDA’s own Record of Investigation states that

Steele “made initial contact with an EEO Counselor on February

22, 1999.” JA 185. At the summary judgment stage, the district

court was not free to resolve this disputed issue by disregarding

the January and February dates.

Although we cannot tell from the district court’s Order how

many incidents it thought could not be considered based on the

erroneously chosen contact date, there is no doubt that the date

is material to Steele’s hostile work environment and retaliation

claims. To the extent the district court relied on the June 1999

date in rejecting or limiting those claims, its judgment is

reversed.

B

The district court also rejected Steele’s contention that, even

if some of her individual claims were time-barred, she could still

rely on their underlying events to support her claim that she was

subjected to a hostile work environment. See Order at 11.

Accordingly, the court dismissed that claim without reaching the

merits. This was error.

In National Railroad Passenger Corp. v. Morgan, the

Supreme Court explained that “[h]ostile environment claims are

different in kind from discrete acts” because “[t]heir very nature

involves repeated conduct.” 536 U.S. 101, 115 (2002).

Therefore, the Court held, “[p]rovided that an act contributing

to the claim occurs within the filing period, the entire time

8

period of the hostile environment may be considered by a court

for the purposes of determining liability.” Id. at 117. This is

precisely the rule that the district court rejected in Steele’s case,

and the USDA concedes that the court’s holding was incorrect.

See Oral Argument Rec. 28:12.

Notwithstanding the district court’s error, the USDA urges

us to affirm the judgment on several independent grounds.

First, the Department contends that Steele did not assert a

hostile work environment claim in her complaint. This

argument is unavailing. The complaint alleges “discrimination,”

which in principle includes a hostile work environment theory;

it also specifically requests Steele’s reassignment “to a less

hostile working environment.” Compl. at 1, 12. Moreover,

Steele indisputably raises a constructive discharge claim

premised on a hostile work environment, and under

Pennsylvania State Police v. Suders, 532 U.S. 129, 133-34

(2004), the facts necessary to prove a hostile work environment

are a subset of those necessary to prove this type of constructive

discharge. Indeed, the government’s motion for summary

judgment acknowledged that Steele “appears to allege that all

the events alleged in the complaint caused her to experience a

hostile work environment,” and it both sought summary

judgment on that claim and responded to it (a response qualified,

to be sure, by the observation that it responded to such a claim

“to the extent” raised). Def.’s Mem. of P. & A. at 2, 17-19; see

also Def.’s Mot. for Summ. J. Steele’s opposition responded by

expressly contesting the government’s motion as to that claim.

See Pl.’s Opp’n to Def.’s Mot. for Summ. J. at 4-6. Given all

these circumstances, and in the absence of any apparent

prejudice, we think it too late to argue that the plaintiff never

asserted such a claim.

9

Second, the USDA argues that, even if Steele did assert a

hostile work environment claim, we should affirm because the

district court effectively reached and rejected the merits of that

claim by ruling against Steele on her constructive discharge

claim. The district court, the government maintains, “rightly

interpreted [Steele’s hostile work environment claim] to be

coextensive with her constructive discharge claim.” Appellee’s

Br. 13. But as the Supreme Court made clear in Suders, the

standards for hostile work environment and constructive

discharge claims are not coextensive. 542 U.S. at 133-34

(2004). To establish hostile work environment claims under

Title VII, the Court explained, plaintiffs “must show harassing

behavior ‘sufficiently severe or pervasive to alter the conditions

of [their] employment.’” Id. at 133 (alteration in original)

(quoting Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 67

(1986)). “Beyond that, . . . to establish ‘constructive discharge,’

the plaintiff must make a further showing: She must show that

the abusive working environment became so intolerable that her

resignation qualified as a fitting response.” Id. at 134. The

district court’s rejection of Steele’s constructive discharge claim

on the ground that she did not show working conditions “so

intolerable, so aggravating, that any reasonable person would

have felt compelled to quit,” Order at 15, simply does not

address whether Steele successfully made the lesser showing

that she experienced severe or pervasive harassment that altered

the conditions of her employment. Accordingly, the district

court’s holding as to the former does not suffice to warrant

rejection of Steele’s hostile work environment claim.

Finally, the government invites us to affirm the district

court’s judgment on the alternative basis that Steele’s

allegations fail as a matter of law to rise to the level of

actionable harassment. As noted at the outset, we think the

more prudent course is to allow the district court to decide this

issue on remand. See Doe v. DiGenova, 779 F.2d 74, 89 (D.C.

10

Cir. 1985) (“‘It is the general rule, of course, that a federal

appellate court does not consider an issue not passed upon

below.’” (quoting Singleton v. Wulff, 428 U.S. 106, 120

(1976))). In remanding the issue, we express no opinion as to

whether Steele’s hostile work environment claim is meritorious.

C

Title VII’s anti-discrimination provision makes it unlawful

for an employer “to discriminate against any individual with

respect to his compensation, terms, conditions, or privileges of

employment, because of such individual’s race.” 42 U.S.C. §

2000e-2(a). Title VII’s anti-retaliation provision makes it

unlawful for an employer “to discriminate against [an]

employee[] . . . because he has opposed any practice” made

unlawful by Title VII or “has made a charge, testified, assisted,

or participated in” a Title VII proceeding. Id. § 2000e-3(a). The

district court held that, for retaliatory conduct to be actionable,

it must meet the same standard required for discriminatory

conduct -- i.e., it must constitute an “adverse employment

action,” which the court defined as “an action that results in

‘materially adverse consequences affecting the terms,

conditions, or privileges of employment.’” Order at 11 (quoting

Brody, 199 F.3d at 457). Under that standard, the court found

that a number of Steele’s retaliation claims did not survive

review. Id. at 12.

Nine months after the district court dismissed Steele’s

claims, the Supreme Court decided Burlington Northern &

Santa Fe Railway Co. v. White, 548 U.S. 53 (2006). In

Burlington, the Court expressly rejected the Sixth Circuit’s

standard for retaliation claims, which was the same standard that

circuit applied to substantive discrimination claims and identical

to the standard applied by the district court in this case. The

Sixth Circuit’s view was that, to succeed on a retaliation claim,

11

“a plaintiff must show an ‘adverse employment action,’ which

[that circuit] defined as a ‘materially adverse change in the

terms and conditions’ of employment.” Id. at 60 (quoting White

v. Burlington N. & Santa Fe Ry. Co., 364 F.3d 789, 795 (6th Cir.

2004)). Finding that the “language of the substantive provision

differs from that of the anti-retaliation provision in important

ways,” id. at 61, the Supreme Court concluded that “Title VII’s

substantive provision and its anti-retaliation provision are not

coterminous,” and that the “scope of the anti-retaliation

provision extends beyond workplace-related or

employment-related retaliatory acts and harm,” id. at 67.

As to “how harmful an act of retaliatory discrimination

must be in order to fall within the provision’s scope,” id. at 61,

the Court “agree[d] with the formulation” this court set forth in

Rochon v. Gonzalez: “In our view, a plaintiff must show that a

reasonable employee would have found the challenged action

materially adverse, ‘which in this context means it well might

have dissuaded a reasonable worker from making or supporting

a charge of discrimination.’” Id. at 68 (quoting Rochon, 438

F.3d 1211, 1219 (D.C. Cir. 2006) (internal quotation marks

omitted)). That standard does not require consideration either

of the severity of the underlying act of discrimination to which

the employee objected, or -- as the USDA insists -- of the

courage that particular employee demonstrated by reporting it

(and hence of her asserted imperviousness to acts of retaliation).

Indeed, Burlington expressly forecloses such considerations. Id.

at 69 (“[T]his standard does not require a reviewing court or jury

to consider the nature of the discrimination that led to the filing

of the charge.” (internal quotation marks omitted)); id. at 68

(“We refer to reactions of a reasonable employee because we

believe that the provision’s standard for judging harm must be

objective.”).

12

In light of the Court’s decision in Burlington, the

government concedes that the district court applied the wrong

standard for retaliatory conduct. It nonetheless urges us to

affirm on the ground that Steele’s allegations do not in any event

constitute actionable retaliation. Appellee’s Br. 19. As we have

already explained, the state of the record and the factual

intricacies intertwined with some of the allegations make us

unwilling to delve into most of the questions that the district

court did not address.

We do note, however, that at least four alleged incidents

that Steele describes as retaliatory -- the denial of the Y2K

award, the issuance of the lowest performance rating of her

career combined with the lowest performance bonus in her

branch, the denial of the special act award, and the false report

to the D.C. Office of Unemployment Compensation contesting

her unemployment benefits -- involve conduct that this court or

the Supreme Court has already indicated can support a

retaliation claim. As the district court correctly noted, we held

in Russell v. Principi that a cash bonus diminished as a result of

a poor performance evaluation can constitute a cognizable action

under Title VII. Order at 13 (citing 257 F.3d 815, 819 (D.C. Cir.

2001)); see also Weber, 494 F.3d at 184-86 (D.C. Cir. 2007)

(holding that two performance evaluations “qualif[ied] as

adverse actions” under Burlington “insofar as they resulted in

. . . losing a financial award or an award of leave”). And in

Burlington, the Supreme Court indicated that a false report to

government authorities can constitute retaliation, citing with

approval the Tenth Circuit’s finding of “actionable retaliation

where [an] employer filed false criminal charges against [a]

former employee who complained about discrimination.” 548

U.S. at 64 (citing Berry v. Stevinson Chevrolet, 74 F.3d 980,

984, 986 (10th Cir. 1996)).

13

We express no opinion as to whether the actions alleged in

Steele’s remaining retaliation claims can constitute “materially

adverse actions.” On remand, the district court should apply the

Burlington standard to those allegedly retaliatory actions that it

determines took place after Steele complained about

discriminatory conduct, and that it finds are otherwise properly

before the court.

III

For the foregoing reasons, we reverse the dismissal of

Steele’s hostile work environment and retaliation claims and

remand the case for further proceedings consistent with this

opinion.

Reversed and remanded.