DIAZ, Circuit Judge:
Denise Burgess, an African American female, was terminated from her executive-level position at a federal agency, purportedly due to a reorganization necessitated by budgetary pressures. The district court granted summary judgment to the agency on Burgess's claims alleging discrimination and retaliation based on her termination and the denial of a transfer to another position within the agency. Viewing the record evidence in the light most favorable to Burgess, we conclude that granting summary judgment to the agency was inappropriate. Accordingly, we vacate the district court's judgment and remand for further proceedings.
We recite the facts, with reasonable inferences drawn, in favor of Burgess, the nonmovant.
Congress created the office of the Special Inspector General for Iraq Reconstruction ("SIGIR") to oversee all U.S.— funded reconstruction programs and projects in Iraq. Its chief mission is to provide audit and oversight of the use, and potential misuse, of the Iraq Relief and Reconstruction Fund, and all expenditures associated with reconstruction activities in Iraq. SIGIR is also mandated to provide Congress quarterly and semi-annual reports and maintains a separate Congressional Affairs office to fulfill these responsibilities. Additionally, SIGIR maintains an office of Public Affairs responsible for the organization's external communication. Once a stand-alone office, Public Affairs is now part of the agency's Congressional Affairs office.
Since SIGIR's inception, Stuart Bowen, Jr., has served as the head of the agency. In January 2007, Bowen recruited Burgess to join SIGIR as the Assistant Inspector General for Public Affairs ("AIG-PA") through March 2008.
Following a brief detail to the U.S. State Department, Ginger Cruz returned to SIGIR in February 2007 as a "Senior Advisor." In June 2007, Cruz was restored to her former post as Deputy Inspector General for Policy, where she directly supervised Burgess. According to Burgess, Cruz took an immediate dislike to her and began usurping Burgess's authority and duties and making discriminatory and harassing remarks. In one such incident, Cruz "out of the blue" told Burgess that "people who file discrimination complaints are weak links in the chain . . . looking to excuse their own personal failing."
On July 19, 2007, Cruz notified Burgess that Redmon was to be terminated in two weeks' time. Burgess responded that she believed that she and Redmon were being targeted, and that the Public Affairs section—then consisting solely of two African American women—was being singled out for elimination. Burgess also expressed that it would be difficult for her to manage the section's workload without an assistant. Cruz did not respond directly to Burgess's claim that she and Redmon were being targeted, but did assure Burgess that she would have adequate administrative support going forward.
On July 23, Burgess sent an email to Cruz in which she questioned the "fairness and equality" of the decision to terminate Redmon.
Later that day, Cruz notified Burgess in a meeting also attended by Bowers that Burgess's AIG-PA position was being eliminated because of budget constraints. When Burgess pressed for a more detailed explanation, Cruz responded that the position was being eliminated as part of a budget-driven reorganization and that SIGIR required the "right mix of people."
Separately, also on July 23, Cruz asked Arnston to draft a position description for a new Director of Public Affairs ("DPA") position. A former SIGIR employee, Kristine Belisle, a white woman, was selected for the new position, even though performance deficiencies were in part responsible for her initial departure from SIGIR in March 2007. Cruz later explained that Belisle was hired over Burgess because the DPA role required "someone who was able to do the heavy lifting, who was not above making the phone calls, who was not above doing .. . the day-to-day scheduling, management and callbacks."
It was common practice in SIGIR to reassign employees who were terminated, whether through a "reorganization" or otherwise, to other positions within the agency. Despite Burgess's laudable work—as evidenced by her receipt of a letter of commendation for "exemplary service on the job" accompanied by an $8500 cash reward on May 31, 2007, and a separate letter from Arnston in which he congratulated Burgess on her fine performance—she was not offered another position in the agency.
Burgess was the only African American member of SIGIR's senior management at the time, the only member of senior management to be involuntarily terminated, and the only SIGIR employee terminated as part of the agency's reorganization.
After exhausting her administrative remedies, Burgess filed a four-count complaint in the district court alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e
We review de novo a grant or denial of summary judgment, applying the same standard applied by the district court.
It is not the district court's role to "weigh the evidence and determine the truth of the matter" but instead to determine whether there are "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."
A three-step framework applies to the resolution of discrimination and retaliation claims where, as here, there is only circumstantial evidence.
The parties dispute whether the district court applied an incorrect standard in evaluating Burgess's discrimination claims. Following the Supreme Court's opinion in
In
Applying the
Burgess first contends that she suffered racial discrimination when her AIG-PA position was terminated and when a less qualified white woman was selected for the DPA position created in its place. To establish a prima facie case of discriminatory termination, a plaintiff must show that (1) she is a member of a protected class; (2) she was qualified for her job and her job performance was satisfactory; (3) in spite of her qualifications and her performance, she was fired; and (4) she was replaced by someone outside her protected class, or otherwise treated differently than similarly situated persons outside the class.
The district court held that Burgess had not established her prima facie case. Specifically, the court concluded that Burgess was not replaced by someone outside her protected class because the AIG-PA position had been eliminated and thereby did not remain open to similarly qualified applicants following Burgess's dismissal. Further, the district court concluded that the new DPA position was not, contrary to Burgess's assertion, the functional equivalent of the AIG-PA position. As evidence of this, the district court relied on certain differences in the written descriptions of the positions and the responsibilities thereunder. The district court further accepted SIGIR's contention that the new position was ministerial in nature involving no management or supervision of employees, in contrast to the autonomous managerial and policy functions of the AIG-PA position.
Neither party has articulated a standard by which to properly assess whether a position remains open in the face of some changes in the written job description. Both parties do, however, draw our attention to
We accept the district court's premise that there may be circumstances in which the differences between two written job descriptions are so stark such that it cannot be said that "the [first] position remained open to similarly qualified applicants,"
Specifically, Cruz initially sought to hire Belisle under the identical title, responsibilities, and salary as enjoyed by Burgess, but shifted gears after being alerted that her proposal was inconsistent with the agency's contention that Burgess's position was eliminated because of a reorganization. Only then did the agency revise the description, responsibilities, and salary of the DPA position. Despite the changes, however, Belisle testified that, as the DPA, she in fact "was the sole person managing public affairs, in the sense that [she] was the sole person implementing the skills and activities of the position." J.A. 1260. The new DPA position also involved the supervision of a support staff member who split time with Public Affairs and another department.
Because the district court failed to view this evidence in the light most favorable to Burgess, it erred in finding that Burgess had not established her prima facie case. Indeed, the transfer of most of the AIG-PA responsibilities to the DPA position was, in our view, itself sufficient to meet Burgess's burden.
The district court's analysis nevertheless assumed that Burgess had established a prima facie case, but concluded that SIGIR had provided legitimate nondiscriminatory reasons for Burgess's termination: that budgetary pressures necessitated the elimination of Burgess's position, that the entire Public Affairs section was reorganized, and that other employees were terminated or had their contract positions revoked. Accordingly, the district court found that Burgess failed to establish that SIGIR's reason for her termination was pretextual. Specifically, the district court held that "Plaintiff must show there is a genuine issue of material fact regarding a connection between her race and her adverse employment action" and "Plaintiff has not come forward with evidence that these acts were motivated by race discrimination."
Viewed in the light most favorable to Burgess, however, the record evidence reveals significant inconsistencies as to whether other employee or contract positions were eliminated as part of a reorganization, whether budgetary pressures in fact necessitated the elimination of Burgess's position, when the decisions were made to execute any reorganization, whether the Public Affairs section was actually reorganized to promote savings, and whether the elimination of Burgess's position actually achieved any meaningful savings. Although the district court was not persuaded by this evidence, the proper standard is whether a reasonable jury could have found SIGIR's proffered explanation incredible and, thus, could have concluded that Burgess's termination was discriminatory.
We hold that the district court erred in concluding, as a matter of irrebuttable fact, that the AIG-PA position had been eliminated and that the position created in its place was not sufficiently similar to present that issue to the jury. Second, the court failed to view the record evidence supporting Burgess's challenges to the credibility of SIGIR's proffered explanation in the light most favorable to her, and thus failed to apprehend that such evidence standing alone was sufficient to show pretext after SIGIR proffered its nondiscriminatory explanation.
Accordingly, we vacate the district court's decision to grant summary judgment to SIGIR on Burgess's first claim of discriminatory termination.
Burgess also alleges that she suffered racial discrimination when she was denied a transfer to the DPA position or a "Senior Advisor" position to which terminated employees were routinely assigned.
The district court found that Burgess had established a prima facie case with respect to this claim. However, the court again found that SIGIR had proffered a legitimate nondiscriminatory reason for denying Burgess the transfer: that Burgess "was not the person for the job,"
SIGIR asserts that Burgess's own complaints about lacking administrative support and resources rendered her unfit for the DPA position. While Burgess admits to complaining about being understaffed during her time as the AIG-PA, this does not necessarily compel the conclusion that she was unable to accomplish the tasks required of the DPA position. On that score, Burgess points to evidence showing that she was awarded a bonus for exemplary performance and that she routinely worked late hours to execute the functions of the Public Affairs office. This evidence, Burgess contends, demonstrates that she was fully able and willing to assume any responsibilities called for by the DPA position. Burgess further contends that Belisle—who herself had been terminated at least in part for poor performance—was in no better position to do so. Finally, Burgess argues that SIGIR's vague characterization that she "was not the person for the job,"
Although we agree with the district court that "there must be a sufficient record of proof for a reasonable jury to agree [that race was the basis for denying Burgess a transfer],"
Burgess also alleges that she suffered unlawful retaliation, once when she was terminated and again when she was denied a transfer. To establish a prima facie case for retaliation, a plaintiff is required to prove the following: (1) she engaged in a protected activity; (2) an adverse employment action was taken against her; and (3) there was a causal connection between the first two elements.
The parties first contest whether Burgess in fact engaged in protected activity. Burgess contends that she engaged in two protected acts, the first when she verbally complained to Cruz that she and Redmon were being "targeted," and the second when she questioned the "fairness and equality" of Redmon's termination in a subsequent email to Cruz. As to the first point, Burgess explains that her "intent of using the word targeted was to alert [Cruz] in very concrete terms that there was concern on [Burgess's] part that this was racial." J.A. 1371. As to the second point, Burgess asserts that her email borrowed verbatim from language that appeared on the Equal Employment Opportunity Commission website and was also contained in SIGIR's EEO policy.
Our cases hold that an employee's complaint constitutes protected activity when the employer understood, or should have understood, that the plaintiff was opposing discriminatory conduct.
We find that SIGIR actually understood or should have understood that Burgess was complaining of discriminatory conduct.
Turning now to the merits of the retaliation claims, we acknowledge that some of the evidence before the district court supports SIGIR's position that the decision to terminate Burgess, as well as the decision to hire Belisle for the DPA position, occurred prior to Burgess's engaging in protected activity. However, in
In this case, a jury could reasonably find that the decision to terminate Burgess and to hire Belisle occurred only after Burgess challenged the fairness and equality of the decision to terminate Redmon. Specifically, Burgess presented evidence that, only after Cruz received Burgess's email, did Cruz (1) telephone Belisle to offer her a contract position handling the public affairs duties (before the DPA position was finalized), (2) instruct Arnston to draft a description for the new DPA position, and (3) schedule a meeting to inform Burgess of her termination. Finally, and most probative on Burgess's retaliatory denial of transfer claim, is Cruz's own admission that she would have considered offering Burgess another position had the conversation during Burgess's termination meeting gone differently.
We have held that "[v]ery little evidence of a causal connection is required to establish a prima facie case [of retaliation],"
Burgess's claims may nevertheless fail if she cannot overcome SIGIR's proffer of a legitimate, nonretaliatory explanation. The district court dispensed with this analysis having found no prima facie case. We find here that the question of whether the agency proffered a nonretaliatory reason for terminating Burgess and denying her the transfer merges with our prior discussion concerning the agency's proffered reason in the context of Burgess's discrimination claims. Although we agree with the district court that the agency has proffered a legitimate nonretaliatory reason, Burgess's prima facie evidence combined with the additional evidence tending to undermine the credibility of that reason suffices to defeat the agency's motion for summary judgment.
In sum, the record in this case reveals an abundance of genuine factual disputes on material issues. While we have viewed and recounted the facts in the light most favorable to Burgess, we acknowledge that SIGIR's contentions also find support in the record. Be that as it may, the evidence in this case was not "so one-sided" as to warrant granting SIGIR's motion for summary judgment on Burgess's claims. Accordingly, we vacate the district court's judgment and remand for further proceedings.