Steele v. Schafer

Decision Date01 August 2008
Docket NumberNo. 05-5430.,05-5430.
Citation535 F.3d 689
PartiesCheryl STEELE, Appellant v. Ed SCHAFER, Secretary of Agriculture, Appellee.
CourtU.S. Court of Appeals — District of Columbia Circuit

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.

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.


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.

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 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.


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 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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (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, 106 S.Ct. 2505. "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, 106 S.Ct. 2505.

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, 122 S.Ct 2061, 153 L.Ed.2d 106 (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, 126 S.Ct. 2405, 165 L.Ed.2d 345 (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.

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.


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...

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