George v. Leavitt

• Citation: 407 F.3d 405
• Decision Date: 17 May 2005
• Docket Number: No. 03-5356.,03-5356.
• Parties: Diane N. GEORGE, Appellant v. Michael O. LEAVITT, Administrator, EPA, Appellee
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

407 F.3d 405

Diane N. GEORGE, Appellant v. Michael O. LEAVITT, Administrator, EPA, Appellee

No. 03-5356.

United States Court of Appeals, District of Columbia Circuit.

Argued January 13, 2005.

Decided May 17, 2005.

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Appeal from the United States District Court for the District of Columbia (No. 01cv00654).

Suzanne M. Tsintolas argued the cause and filed the brief for appellant.

Heather Graham-Oliver, Assistant U.S. Attorney, argued the cause for appellee. With her on the brief were Kenneth L. Wainstein, U.S. Attorney, and Michael J. Ryan, Assistant U.S. Attorney. R. Craig Lawrence, Assistant U.S. Attorney, entered an appearance.

Before: EDWARDS, HENDERSON, and RANDOLPH, Circuit Judges.

HARRY T. EDWARDS, Circuit Judge.

Following her discharge from the Environmental Protection Agency ("EPA"), appellant Diane N. George brought suit in the District Court, claiming violations of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq. (2000). Specifically, George claimed that she had been subject to a hostile work environment, that her discharge was the result of discrimination on the basis of race, sex, and national origin, and that she was retaliated against for engaging in activities that were protected under Title VII. The District Court granted summary judgment in favor of EPA on all counts. See George v. Horinko, Civ. A. No. 01-00654 (D.D.C. Oct. 16, 2003), reprinted in Joint Appendix ("J.A.") 570.

We affirm the judgment against George on her retaliation and hostile work environment claims, but we reverse the judgment in favor of EPA on the discrimination claims. On the record at hand, George has proffered evidence by which a reasonable jury could conclude that EPA's stated reasons for her discharge are a pretext for discrimination. Accordingly, she has created a genuine dispute over the validity of the reasons given for her discharge, precluding summary judgment. The case will therefore be remanded to the District Court for further proceedings consistent with this opinion.

I. BACKGROUND

Diane George is a black woman originally from Trinidad and Tobago. An engineer by training, she was hired by EPA on September 14, 1998, subject to a one-year probationary period, to work as an environmental specialist in EPA's Office of the Asbestos and Small Business Ombudsman ("OASBO"). George was fired on March 26, 1999.

During the six months that George worked at EPA, Karen Brown, the Asbestos and Small Business Ombudsman, was George's team leader and had direct day-to-day supervisory responsibility over George. Brown, however, was not officially classified as a manager; rather, Tom Kelly, the director of EPA's Office of Regulatory Management and Information, was the manager of record for both George and Brown. Although Brown interviewed George and recommended that she be hired, it was Kelly who officially hired and fired George.

In addition to George and Brown (a black woman), the OASBO during George's tenure consisted of a deputy ombudsman (a white man), four clerical or administrative employees (all black women), a computer specialist (a black man), and four professional engineers (all white men). With the exception of George and an engineer who originally was from Great Britain, all of the employees were from the United States. George was the only probationary employee in the unit, but seven of the other employees, including all four engineers, were employed not as federal civil servants but rather on a contract basis under EPA's Senior Environmental Employment Program.

According to George, she and her co-workers had several confrontations in December 1998 and January 1999 when her co-workers made insulting and demeaning statements to her. On different occasions, she was told by three separate employees to "go back to Trinidad" or to "go back to where [she] came from." On these and other occasions, her co-workers shouted at her, told her that she should never have been hired, and told her to "shut up." George reported each of these incidents to Brown, but Brown blamed George for causing the incidents and did not take any action.

George also maintains that she was assigned to various clerical duties that the white male engineers were never required to perform. In December 1998 and again in January 1999, George met with staff in EPA's Office of Human Resources to complain about her treatment and to seek advice. George was told to consider a transfer to another office or take her complaints to the director of the human resources office, but no further investigation or action appears to have been taken.

On January 27, 1999, Brown and Kelly conducted a review of George's job performance. During the course of the evaluation, neither Brown nor Kelly raised any concerns about George's work or conduct. The supervisors' written evaluation gave George a "Successful" rating and observed that her work "shows considerable thought, insight and creativeness" and "require[s] no more than minor revisions"; that she "[w]orks effectively with office staff"; that she "routinely" meets her deadlines; and that she "[k]eeps pace with most new emerging external EPA issues and activities affecting office roles and responsibilities." Brown and Kelly maintain, however, that Brown advised Kelly before the performance review that Brown wanted to overlook any problems that George may have had in order to send her an encouraging message.

According to Brown, in the weeks following George's evaluation, George had a number of confrontations with her co-workers, including one incident when George was rude to an employee in the EPA mailroom, causing the employee's supervisor to lodge a complaint with OASBO, and another incident when George appeared rude after Brown asked her to cover a meeting. In mid-February, following these incidents, Brown met with Carolyn Johnson, the director of the Office of Human Resources, to seek advice on terminating "a probationary employee."

At around the same time, George returned to the Office of Human Resources to complain about Brown and what George perceived to be discriminatory treatment. George eventually met with Johnson, who advised George to take her complaints to EPA's Office of Civil Rights. George was provided information on her rights, including procedures for filing complaints of discrimination.

A few days later, Brown held a staff meeting with the OASBO clerical staff. Brown told the employees at the meeting that George was "causing problems" and instructed them to "keep [their] distance" from her. Brown also told the staff that she wanted a witness to be present whenever she and George met. And, on at least one occasion, an employee was asked to witness a conversation between Brown and George to ensure that "there couldn't be any call of harassment."

On February 23, Brown met with George to discuss some complaints regarding George's transcription of phone messages from an office answering machine ("the Hotline"). George denied that she had made any mistakes. Brown thought that George was insubordinate during the meeting, challenging Brown's authority. George, on the other hand, maintains that, without provocation, Brown "suddenly lost control" during the meeting.

The next day, Brown advised George that her employment was "not working out" and that she intended to raise the matter with Kelly. Brown met with Kelly that same day and recommended that George be fired. Kelly took Brown's recommendation under advisement, but made it clear that he would not simply accept Brown's account of the facts, but "was going to find out [for himself] what was going on."

On February 26, George went to the Office of Civil Rights to discuss the filing of a discrimination complaint against Brown and the agency. She also scheduled a private meeting with Kelly for March 1. At that meeting, George voiced her complaints to Kelly, expressing concern that she was a victim of discrimination and harassment. At the conclusion of the meeting, Kelly told George that he took her complaints seriously and would look into the situation. Kelly subsequently spoke with Brown about George's charges. Brown told Kelly that, in her view, George was to blame for provoking her co-workers.

On March 2, according to George, Brown came into George's office and, on her way out, violently and angrily kicked a box that she stumbled over. Noticeably shaken by this incident, George met with Kelly to inform him of the incident. George told Kelly that she was "fed up with the harassment" and was going to file a complaint with the Office of Civil Rights.

After his meeting with George, Kelly spoke with Brown about George's allegations. Brown denied that she had violently kicked a box, maintaining that she had merely stumbled over it and moved it out of the way with her foot. Brown told Kelly that another OASBO employee, James Malcolm, had witnessed the event.

Kelly claims that he then spoke with Malcolm. According to Kelly, Malcolm corroborated Brown's account of the incident, and also volunteered various problems he had in working with George. Malcolm does not remember speaking to Kelly about George, but states that, if he did, he would have corroborated Brown's account about the box-kicking incident. He maintains, however, that he "[a]bsolutely" never complained about George to Kelly. For her part, George maintains that Malcolm witnessed an entirely different incident when Brown stumbled over a box, not the incident in question when Brown violently kicked a box.

Kelly states that, after his conversations with Brown and Malcolm, he concluded that George was lying about the box-kicking incident. At this point, still on March 2, Kelly concluded that George was unreliable and, his earlier decision to conduct a full investigation of the facts notwithstanding, he decided to accept Brown's recommendation and fire George.

Kelly claims that he continued his investigation on March 3 when he...