433 F.3d 889 (D.C. Cir. 2006), 04-5216, Holcomb v. Powell

• Citation: 433 F.3d 889
• Party Name: Christine M. HOLCOMB, Appellant v. Donald E. POWELL, Chairman, Federal Deposit Insurance Corporation, Appellee.
• Case Date: January 10, 2006
• Court: United States Courts of Appeals, U.S. Court of Appeals — District of Columbia Circuit

Page 889

433 F.3d 889 (D.C. Cir. 2006)

Christine M. HOLCOMB, Appellant

v.

Donald E. POWELL, Chairman, Federal Deposit Insurance Corporation, Appellee.

No. 04-5216.

United States Court of Appeals, District of Columbia Circuit.

January 10, 2006

Argued Oct. 7, 2005.

Page 890

[Copyrighted Material Omitted]

Page 891

[Copyrighted Material Omitted]

Page 892

Appeal from the United States District Court for the District of Columbia No. 01cv01550

Ellen K. Renaud argued the cause for appellant. With her on the briefs were David H. Shapiro and Richard L. Swick.

Michael J. Ryan, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Kenneth L. Wainstein, U.S. Attorney, Diane M. Sullivan, Assistant U.S. Attorney, and Lawrence H. Richmond, Counsel, Federal Deposit Insurance Corporation. R. Craig Lawrence, Assistant U.S. Attorney, entered an appearance.

Before: Rogers and Brown, Circuit Judges, and Williams, Senior Circuit Judge.

OPINION

Brown, Circuit Judge.

Plaintiff Christine Holcomb filed suit against her employer, the Federal Deposit

Page 893

Insurance Corporation (FDIC), alleging two violations of Title VII of the Civil Rights Act of 1964: first, discrimination against her on the basis of race when the corporation failed to select her for a promotion; and second, retaliation against her in the form of reduced work responsibilities when she filed a discrimination complaint following the non-promotion. The district court granted summary judgment for FDIC on both the discrimination and retaliation claims. We conclude the record does not contain sufficient evidence from which a jury could infer that FDIC engaged in prohibited racial discrimination when it selected a white applicant for the disputed position, and we affirm the grant of summary judgment on Holcomb's discrimination claim. Contrary to the district court, however, we conclude Holcomb has established a prima facie case of retaliation, and we reverse the grant of summary judgment on her retaliation claim.

I

In 1991, Christine Holcomb, an African-American woman, began working for the Resolution Trust Corporation (RTC) as a Grade 7 Secretary. In late 1995, after RTC merged with FDIC, Holcomb moved to FDIC, and her career prospered. Within three years, she was a Grade 11 Program Specialist in the Office of Diversity and Economic Opportunity (ODEO).

In early 1999, ODEO underwent a series of reorganizations initiated by Vijay Deshpande, the acting director, in an effort to streamline the Equal Employment Opportunity (EEO) complaint process. In February of that year, Anna Mergele, an Asian-American female attorney from FDIC's legal division, began a detail to ODEO to serve as acting chief of the Complaints branch in order to reduce a backlog of unresolved EEO complaints. For about six weeks, Mergele was Holcomb's immediate supervisor, but Holcomb was in transition, having applied for and been selected to serve on a year-long detail to FDIC's Division of Compliance and Consumer Affairs (DCA) to work on Y2K-related issues. Despite needing Holcomb's help with the ODEO backlog, Mergele approved the detail. Holcomb had indicated a strong interest in the position and Mergele viewed it as a unique opportunity.

When Holcomb left for DCA, Mergele requested Amy Del Valle, a certified paralegal within FDIC's legal division, where Mergele had previously been employed, be detailed to ODEO. Del Valle, a white female, had joined RTC in March 1991 as a Grade 9 Paralegal and, in 1992, was promoted to Grade 11 Paralegal, her position at the time Mergele made her request. Mergele had worked with Del Valle before and requested the detail because Holcomb's departure exacerbated the need for assistance with the complaint backlog.

Meanwhile, Holcomb sought to cut short her DCA tenure and return to ODEO. Mergele was amenable to Holcomb's request but lacked authority to make the decision; however, the ODEO director insisted that Holcomb fulfill ODEO's obligation to DCA. Holcomb remained at DCA until March 2000 but would, on her own initiative, work on ODEO matters during lunch breaks or after regular business hours.

In August 1999, Holcomb received a disappointing annual performance evaluation, covering the period from September 1998 to August 1999 — a period during which she had worked at both ODEO and DCA. Because Mergele's period of supervision had been so brief, Gregory Cofer actually completed the evaluation, which Mergele signed. Holcomb's DCA supervisor proposed a 3 rating for "analytical/technical skills"; Cofer reduced that rating to a 2, which lowered Holcomb's overall rating from "outstanding" to "superior."

Page 894

In October 1999, ODEO advertised for a new position, Grade 12 Program Specialist. Both Holcomb, on detail to DCA at the time, and Del Valle applied for the job, and the personnel department identified them as the only two candidates who met the minimum qualifications. Mergele, the selecting official, interviewed both women and ultimately selected Del Valle. Shortly after learning of Del Valle's selection, on January 19, 2000, Holcomb filed a formal administrative discrimination complaint, primarily alleging discrimination because of race, age, and disability based on ODEO's failure to promote her. The complaint also alleged the repeated denials of Holcomb's requests to return to ODEO from her DCA detail and the 1998-99 job evaluation that rated Holcomb's performance as merely "superior" rather than "outstanding" were motivated by illegal discrimination.

When Holcomb's DCA detail ended in March 2000 and she returned to ODEO, she was assigned to a reorganized Formal Complaints section, where Michael Moran, an Asian-American male, served as her supervisor. Holcomb, still a Grade 11 Program Specialist, quickly became dissatisfied with the low level of her job responsibilities, which were primarily clerical. Moran's attempts to assign suitable tasks failed. Holcomb objected to certain tasks, believing they were not commensurate with her grade, and lacked familiarity with other tasks requiring greater skill and experience.

In approximately May 2001, Holcomb expressed apprehension to Vincent Johnson, an African-American male and Deputy Director of ODEO, that her job was being eroded and she feared a demotion. Johnson sought to give Holcomb assignments more commensurate with her grade but remained concerned about Holcomb's lack of meaningful work. Accordingly, Johnson supervised a desk audit in February 2002, which ultimately revealed Holcomb was performing Grade 5 work. Subsequently, Johnson and Moran, with input from Mergele, wrote a new Grade 11 Equal Opportunity Specialist position description for Holcomb covering duties available within the Complaints section, which was approved in August 2002 and remediated Holcomb's under-utilization. At no time was Holcomb ever threatened with demotion, nor did management ever discuss the possibility.

Holcomb filed a second formal administrative complaint on April 8, 2002. In alleging discrimination, harassment, and hostile work environment, the complaint charged that Mergele and Moran deliberately withheld duties from Holcomb to the detriment of her career; that they provided Del Valle with assignments designed to enhance her opportunities for promotion; and that Mergele unfairly criticized Holcomb during a March 2002 meeting reviewing a report Holcomb had helped to assemble.

Holcomb had already filed a complaint on July 17, 2001, in the United States District Court for the District of Columbia, alleging racial discrimination and retaliation in violation of Title VII, based, in part, on FDIC's failure to select her for the Grade 12 Program Specialist position.¹ On

Page 895

April 17, 2003, Holcomb filed an amended complaint. The amended complaint again alleged racial discrimination and retaliation but supplemented Holcomb's claims with the results of the desk audit and the treatment received from Mergele at the March 2002 meeting. FDIC moved for summary judgment on both counts. The district court granted the motion, and Holcomb appealed.

II

We review the grant of summary judgment de novo. Carter v. George Wash. Univ., 387 F.3d 872, 878 (D.C. Cir. 2004). Summary judgment is appropriate only if the pleadings, depositions, answers to interrogatories, admissions, and affidavits filed pursuant to discovery show that, first, "there is no genuine issue as to any material fact" and, second, "the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). In making this determination, we view the evidence in the light most favorable to Holcomb and draw all reasonable inferences in her favor; we are not to make credibility determinations or weigh the evidence. Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 150 (2000).

"The mere existence of some alleged factual dispute between the parties" will not defeat summary judgment; "the requirement is that there be no genuine issue of material fact." Anderson, 477 U.S. at 247-48. A fact is "material" if a dispute over it might affect the outcome of a suit under governing law; factual disputes that are "irrelevant or unnecessary" do not affect the summary judgment determination. Id. at 248. An issue is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. If there are no genuine issues of material fact, the moving party is entitled to judgment as a matter of law if the nonmoving party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

A

We begin with Holcomb's discrimination claim. Title VII of the Civil Rights Act of 1964 prohibits federal agencies, including government...