Wiley v. Glassman

• Decision Date: 14 December 2007
• Docket Number: No. 06-5402.,06-5402.
• Citation: 511 F.3d 151
• Parties: Verla M. WILEY, Appellant v. James K. GLASSMAN, Chairman of the Broadcasting Board of Governors, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

511 F.3d 151

Verla M. WILEY, Appellant v. James K. GLASSMAN, Chairman of the Broadcasting Board of Governors, Appellee.

No. 06-5402.

United States Court of Appeals, District of Columbia Circuit.

Argued November 16, 2007.

Decided December 14, 2007.

Leslie D. Alderman, III argued the cause and filed the briefs for appellant.

Diane M. Sullivan, Assistant U.S. Attorney, argued the cause for appellee. With

her on the brief were Jeffrey A. Taylor, U.S. Attorney, and Michael J. Ryan, Assistant U.S. Attorney. R. Craig Lawrence, Assistant U.S. Attorney, entered an appearance.

Before: BROWN and GRIFFITH, Circuit Judges, and EDWARDS, Senior Circuit Judge.

Opinion for the Court filed PER CURIAM.

PER CURIAM:

Appellant Verla Wiley, an African-American woman, worked at the United States Information Agency ("USIA") from 1966 until her retirement in May 2005. In October 1999, USIA was abolished and certain sections reconstituted as the Broadcasting Board of Governors ("BBG"). See 22 U.S.C. §§ 6531-6553. (For the remainder of this opinion, appellee will be referred to as "BBG.")

During the time periods that are relevant to issues in this appeal, appellant worked as an International Radio Broadcaster in the English-to-Africa Branch of the Africa Division at Voice of America, formerly a division of USIA. In April 1999, Ms. Wiley and two other plaintiffs filed a lawsuit in District Court against USIA, alleging violations of Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, 42 U.S.C. § 2000e et seq. The plaintiffs claimed that they had been discriminated against on the basis of their race and/or sex, subjected to a hostile work environment, and retaliated against for engaging in activities that were protected by Title VII. As of 2004, Ms. Wiley was the only remaining plaintiff in the litigation before the District Court.

The facts of this case have been described at length by the District Court, see Kemi Southey-Cole v. Kenneth Y. Tomlinson, Civ. A. No. 99-00975 (D.D.C. Oct. 2, 2006) (mem.op.); Kemi Southey-Cole v. Kenneth Y. Tomlinson, Civ. A. No. 99-00975 (D.D.C. May 6, 2005) (District Court judge's order adopting magistrate judge's report and recommendation in full); Kemi Southey-Cole v. Marc B. Nathanson, Civ. A. No. 99-00975 (D.D.C. May 26, 2004) (magistrate judge's report and recommendation), so appellant's allegations need not be recounted in detail here. On May 6, 2005, the District Court granted appellee's motion to strike Ms. Wiley's retaliatory harassment claim, as well as her claim of retaliation based on a reduction in the amount of airtime that she was responsible for producing. Striking appellant's claims effectively dismissed them, and we treat the District Court's decision with respect to these two claims as if it had granted a motion pursuant to Federal Rule of Civil Procedure 12(b)(6). The District Court also granted appellee's motion for summary judgment on all but one of appellant's remaining claims. Subsequently, on October 2, 2006, the District Court granted summary judgment to appellee on Ms. Wiley's remaining claim that she suffered illegal retaliation when BBG forced her to use annual leave for the time that she took to attend depositions related to this lawsuit.

In this appeal, appellant claims that

1. she suffered discrimination and retaliation when appellee failed to promote her to a GS-13 pay grade;

2. she suffered discrimination and retaliation when appellee refused to allow her to participate in the managing editor rotation;

3. she suffered retaliation when appellee retroactively charged her annual leave for the time that she took to attend depositions related to this lawsuit 4. the District Court erred in granting appellee's motion to strike her retaliatory harassment claim; and

5. the District Court erred in granting appellee's motion to strike her retaliation claim stemming from the reduction in the number of minutes of airtime that she was assigned to produce.

We affirm the District Court's grant of summary judgment to appellee on appellant's first three claims. We reverse the District Court's decision to strike appellant's last two claims, but grant summary judgment to appellee on both.

Standard of Review and Legal Standard for Title VII Claims

We review the District Court's grant of summary judgment de novo. Mastro v. Potomac Elec. Power Co., 447 F.3d 843, 849 (D.C.Cir.2006). Summary judgment is appropriate only if there is "no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." FED.R.CIV.P. 56(c). "The inquiry performed is the threshold inquiry of determining whether ... there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In determining whether there are genuine factual issues in dispute, we must draw all reasonable inferences in favor of the nonmoving party. Id. at 255, 106 S.Ct. 2505. Insofar as we are treating the District Court's decisions to strike two of appellant's claims as dismissals under Rule 12(b)(6), "[o]ur standard of review under Federal Rules 12(b)(6) and 56 is the same: de novo." Wilson v. Peña, 79 F.3d 154, 160 n. 1 (D.C.Cir.1996).

Under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), Title VII discrimination claims are assessed pursuant to a simple three-step framework:

First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant "to articulate some legitimate, nondiscriminatory reason for the [action in question]." Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.

Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981) (quoting McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817). To establish a prima facie case of discrimination, a claimant must show that "(1) she is a member of a protected class; (2) she suffered an adverse employment action; and (3) the unfavorable action gives rise to an inference of discrimination." Brown v. Brody, 199 F.3d 446, 452 (D.C.Cir.1999). To establish a prima facie case of retaliation, a claimant must show that (1) she engaged in a statutorily protected activity; (2) she suffered a materially adverse action by her employer; and (3) a causal connection existed between the two. Id.; see also Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 126 S.Ct. 2405, 2414-15, 165 L.Ed.2d 345 (2006) (finding that Title VII's anti-retaliation provision prohibits all materially adverse actions, not merely those harms that are specifically employment-related). In either situation, as the Supreme Court has made clear, "[t]he burden of establishing a prima facie case ... is not onerous." Burdine, 450 U.S. at 253, 101 S.Ct. 1089.

Indeed, just two years after Burdine was decided, the Court emphasized, in strikingly clear terms, that

[t]he prima facie case method established in McDonnell Douglas was never intended to be rigid, mechanized, or ritualistic. ... Where the defendant has done everything that would be required of him if the plaintiff had properly made out a prima facie case, whether the plaintiff really did so is no longer relevant. The district court has before it all the evidence it needs to decide whether the defendant intentionally discriminated against the plaintiff.

U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983) (internal citation and quotation marks omitted). In this case, the District Court had before it hundreds of pages of documents, testimony from various witnesses that was provided during the investigation of appellant's claims by BBG's Office of Civil Rights, and depositions taken after the lawsuit was filed. So there is no doubt here that appellee aimed to "articulate[] legitimate reasons for [the allegedly discriminatory or retaliatory actions] and proffered evidence in support of those reasons." George v. Leavitt, 407 F.3d 405, 411 (D.C.Cir.2005). Given this record, we "need not address the Government's contentions that [appellant] failed to make out a prima facie case." Id. Rather, following the Court's direction in Aikens, we will "proceed to the ultimate question of discrimination vel non." Id. (internal quotation marks omitted).

First Claim: Failure to Promote to GS-13

Appellant claims that her failure to obtain a promotion to the GS-13 level in 1997 and 1998 was the result of discrimination based on her race and sex or retaliation for her complaints to the BBG's Office of Civil Rights. The District Court held, in part, that appellant failed to establish a prima facie case of discrimination, because she could not prove "that anyone similarly situated was promoted when she was not." Kemi Southey-Cole v. Marc B. Nathanson, Civ. A. No. 99-00975 at 22 (D.D.C. May 26, 2004). The District Court applied an erroneous legal standard in reaching this conclusion. Although appellant certainly could have offered evidence of "similarly situated" employees in support of her claim, she was not required to offer such evidence in order to make out a prima facie case. See Mastro, 447 F.3d at 850-51; Stella v. Mineta, 284 F.3d 135, 145-46 (D.C.Cir.2002).

Nevertheless, because we review the District Court's decision de novo, we conduct an independent evaluation of the record to determine whether appellant offered sufficient evidence to prove discrimination vel non. We hold that she did not. The undisputed evidence in the record establishes that there...