Greer v. Paulson

• Decision Date: 02 November 2007
• Docket Number: No. 06-5155.,06-5155.
• Citation: 505 F.3d 1306
• Parties: Dorothy GREER, Appellant v. Henry M. PAULSON, Jr., Secretary, United States Department of Treasury, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

505 F.3d 1306

Dorothy GREER, Appellant v. Henry M. PAULSON, Jr., Secretary, United States Department of Treasury, Appellee.

No. 06-5155.

United States Court of Appeals, District of Columbia Circuit.

Argued September 17, 2007.

Decided November 2, 2007.

Appeal from the United States District Court for the District of Columbia, (No. 01cv01398).

Gregory S. Wagner argued the cause for appellant. With him on the briefs were Elizabeth B. Sandza and Michael F. McBride.

Andrea W. McBarnette, 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.

Before: SENTELLE, ROGERS and GRIFFITH, Circuit Judges.

Opinion for the Court filed by Circuit Judge ROGERS.

ROGERS, Circuit Judge:

Upon the conclusion of her temporary work assignment at the White House, which lasted for more than one year, appellant Dorothy Greer was scheduled to return to her job at the Internal Revenue Service ("IRS"). Instead she requested one month's annual or sick leave and transfer within the IRS. When she did not return to work after the IRS denied her requests and approved only one week's leave, she was placed on absent without leave status ("AWOL"). That status was adjusted in part after she submitted documentation for several months' sick leave. Still she did not return to work. Following the termination of her employment, Greer filed suit pursuant to Title VII of the Civil Rights Act of 1964 and the Rehabilitation Act of 1973. The district court granted summary judgment for the Secretary and this court summarily affirmed in part.¹ We now affirm the grant of summary judgment on the remaining claims. Although we hold that absence from the workplace does not bar a hostile environment claim, Greer's hostile environment claim fails because she did not proffer admissible evidence of an incident that could have shown exhaustion of her administrative remedies. Greer's race discrimination claims fail because she did not exhaust administrative remedies for her termination claim and did not proffer evidence sufficient to rebut the Secretary's legitimate, nondiscriminatory reasons for placing her on AWOL.

I.

Greer is an African-American female who began working as an IRS attorney in 1983. Between 1990 and 1994, she made numerous complaints about racially offensive behavior in the workplace.² According to Greer, her second-line supervisor, Marcus Owens, "reacted in a nonchalant, unconcerned manner" and "told [her] not to be so sensitive." Greer Affidavit ¶ 4 (Sept. 20, 2005). One of her reporting supervisors, Harold Toppall, responded by stating that "people are insensitive . . . and [she had] to learn to look over things like that." Greer Deposition 11 (Nov. 17, 2004). Notwithstanding what she considered to be a culture at the IRS that was hostile to African Americans, an opinion based on racial insults she and her coworkers allegedly experienced, Greer continued to excel, although not to the extent she thought she was entitled. She was promoted in 1989 to become a GS-13 Tax Law Specialist and from 1992 through 1994 her performance appraisals stated that she "Exceeds Fully Successful."

In 1993, Greer filed an Equal Employment Opportunity ("EEO") Pre-Complaint alleging that she was being treated unfairly because of complaints she made regarding racially charged comments in the workplace. Specifically, she asserted that Owens had inaccurately entered information in her personnel file regarding an alleged absence that was inconsistent with the treatment of other employees. Her grievance was never resolved, but, she claims, her efforts to improve the work environment earned her a reputation as an "upstart" (Appellant's Br. at 8), because she spoke out on racial issues.

Greer was absent from her office at the IRS for approximately sixteen months between January 1994 and April 1995. Three and one half months of sick leave were followed directly by a temporary work assignment to the White House. Toward the end of the temporary assignment Greer received a telephone message from Garland Carter that her division had been reorganized and that she would be reporting to him upon her return to the IRS in the Exempt Organizations Branch. Although she had never met Carter, Greer had heard "on the grapevine" (Greer Aff. 4, undated), that Carter had privately made disparaging remarks about her; these allegedly included questioning the leave balance she accumulated during her temporary White House work assignment and suggesting that she acquired her White House assignment as the result of a "special," illicit relationship with a Cabinet member, see id. at 3-5. Additionally, Greer learned that she was to share an office with two white men whose attitudes toward African Americans she believed "were very negative." Greer Dep. 19-21 (Nov. 17, 2004).

On May 1, 1995, the date Greer was scheduled to return to the IRS from her White House assignment, she telephoned Carter early in the morning to request use of 160 hours of annual leave, with immediate effect. As Greer explained later, she and her doctor regarded her office environment at the IRS as "too stressful" because the pervasive racial hostility there was adversely affecting her health. Greer Aff. 9 (undated). Greer believed that her manner of requesting leave followed office policy, that her request would be treated respectfully and that it would be granted— as had been the case for coworkers making similar requests. According to Greer, however, Carter "had a visceral reaction to [her] . . . [,] raised his voice" during their conversation, and then "slammed down the phone." Id. at 1. Carter granted Greer one week of leave and instructed her to report for duty on Monday, May 8, 1995 or be placed on AWOL — an unpaid status. Greer did not comply with Carter's instruction, and throughout the interactions described below did not report for duty. She never returned to work at the IRS.

Initially, instead of reporting to work on May 8, Greer requested sick leave. Carter required, consistent with IRS policy, that Greer provide medical documentation to support her leave request. The documentation she submitted from her doctor indicated that she could return to work on September 26, 1995, and recommended that she seek a transfer to a less stressful environment. On May 12, 1995, Greer wrote James McGovern, the Assistant Commissioner of Employee Plans and Exempt Organizations, to request an immediate transfer from Carter's group as well as the Exempt Organizations Branch, due to events during the prior 16 months. These included a call by Carter to verify her performance appraisal while on assignment to the White House and his alleged indiscreet statements in front of coworkers about her work attendance. Greer believed other colleagues had requested transfers without problems in the past, but her request was denied.

On May 10, 1995, Greer sought EEO counseling, alleging that the IRS was hostile to African Americans and detailing specific instances of mistreatment on racial grounds, including harassment, leave denial and unlawful AWOL designation. Greer filed a formal complaint in August 1995; the IRS eventually dismissed some of her claims as untimely or because she had elected an alternative remedy. After negotiations, a settlement was reached whereby Greer's absences in the period between May and September 1995 were retroactively designated by Carter as either sick leave or leave without pay ("LWOP"); however, use of annual leave was denied. Greer's absence after September 1995 continued to be classified as AWOL and a letter dated May 24, 1996 advised her that "due to your accumulation of excessive AWOL . . . an appropriate adverse action is being contemplated." Letter from Garland A. Carter, Chief, Technical Branch Five, to Dorothy Greer (May 24, 1996).

Meanwhile, in December 1995, Greer had been selected to serve on a federal grand jury, which was scheduled to meet twice weekly for 18 months. The IRS was to pay her for the days she served. In January 1996, Greer wrote to advise her IRS supervisors that she had been over-paid for grand jury service during the first pay period. She suggested that her supervisors had overpaid her on purpose in "a deliberate attempt to induce [her] to commit a fraudulent act." Letter from Dorothy Greer to McGovern, Owens, and Carter (Jan. 19, 1996). Several months later, Carter discovered that Greer had also been paid for numerous days when the grand jury had not met. Greer had not informed him when the grand jury did not meet, explaining that, based on what she was told upon first appearing for grand jury service, she expected the federal district court to inform the IRS about this matter.

On August 13, 1996, the IRS terminated Greer's employment, based on her extended absence without leave since September 26, 1995; her acceptance of unearned pay for grand jury service (from December 1995 through May 1996); and her failure to follow her supervisor's instruction to furnish monthly reports of her grand jury service. Greer filed an administrative complaint on March 30, 1998. When the IRS failed to act, Greer filed suit against the Secretary of the Treasury on June 26, 2001 pursuant to Title VII, 42 U.S.C. § 2000e-16, and sections 501 and 504 of the Rehabilitation Act, 29 U.S.C. §§ 791, 794, alleging race discrimination (including a hostile work environment), sex discrimination, disability discrimination, and retaliation. The district court granted summary judgment to the Secretary. Greer appealed, and in response to the Secretary's motion for summary affirmance, this court affirmed the grant of summary judgment on Greer's claims of retaliation and gender and disability discrimination. Our review of the grant of summary judgment on the remaining claims continues to be de novo, see Mastro v. Potomac Elec. Power Co., 447 F.3d 843, 849 (D.C.Cir.2006); Carter v. George Wash. Univ., ...