Some excerpts from the decision follow:
Czekalsk v. Peters, No. 05-5221 (D.C. Cir. Feb. 2, 2007)
Before: ROGERS and GARLAND, Circuit Judges, and SILBERMAN, Senior Circuit Judge.
GARLAND, Circuit Judge: In 1997, the Federal Aviation Administration reassigned appellant Loni Czekalski -- then a senior career official -- to a new position with different responsibilities. She alleges that the reassignment was effectively a demotion, and that it resulted from gender bias on the part of her immediate supervisor. Because this allegation must be resolved in a jury room rather than in the pages of the Federal Reporter, we reverse the magistrate judge's grant of summary judgment in favor of the government.
. . . Although the government is "correct in considering this case as one of lateral transfer," it errs in its implied premise that a lateral transfer cannot constitute an adverse action. Stewart v. Ashcroft, 352 F.3d 422, 426 (D.C. Cir. 2003). To the contrary, "there are lateral transfers that could be considered adverse employment actions." Id. "[W]ithdrawing an employee's supervisory duties," for example, "constitutes an adverse employment action." Id.; see Burke v. Gould, 286 F.3d 513, 522 (D.C. Cir. 2002). So, too, does "reassignment with significantly different responsibilities." Forkkio v. Powell, 306 F.3d 1127, 1131 (D.C. Cir. 2002) (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998)); see Holcomb v. Powell, 433 F.3d 889, 902 (D.C. Cir. 2006).
Czekalski has raised a genuine issue as to whether the reassignment left her with "significantly different" - and diminished -- supervisory and programmatic responsibilities. According to Czekalski, as Director of AND she oversaw 260 federal employees, approximately 700 contract employees, over fifty separate programs, and an annual budget of approximately $400 million. Czekalski Mem. at 1. Donohue's estimation is not materially different: he testified that at AND, Czekalski had approximately 500 employees and a budget of approximately $750 million per year. Donohue Dep. at 49-50, 122. After the reassignment, by contrast, Czekalski testified that she supervised fewer than ten employees and worked primarily on just one program -- the Y2K initiative -- with "little to no budget of [its] own." Czekalski Dep. at 108 (Sept. 25, 2000). Donohue did not disagree. Donohue Dep. at 123-24.
Czekalski also proffered evidence that the reassignment moved her down the FAA hierarchy. . . .
Whether a particular reassignment of duties constitutes an adverse action for purposes of Title VII is generally a jury question. See Burlington N. & Santa Fe Ry. Co. v. White, 126 S. Ct. 2405, 2417 (2006). The court may not take that question away from the jury if a reasonable juror could find that the reassignment left the plaintiff with significantly diminished responsibilities. See Holcomb, 433 F.3d at 902. Viewing the evidence in the light most favorable to Czekalski, we conclude that a reasonable juror could find that Czekalski suffered an adverse action.
. . . But there is no question that Czekalski proffered evidence from which a jury could have concluded that each of the four reasons offered in the contemporaneous memorandum was false, and that Donohue's subsequent clarifications represented nothing more than backpedaling. From this evidence, a jury could have concluded that "the employer's stated reason was pretextual and that the true reason was discriminatory." Stella, 284 F.3d at 144 (citing McDonnell Douglas, 411 U.S. at 804). Based on the record before us, "we see no circumstances . . . that would preclude a rational factfinder from inferring discrimination from pretext." Murray, 406 F.3d at 715 (D.C. Cir. 2005).
Finally, we consider "any further evidence of discrimination that may be available to the plaintiff," as well as "any contrary evidence that may be available to the employer." Aka, 156 F.3d at 1289.
Czekalski offered independent evidence that Donohue harbored discriminatory attitudes toward women. Burton Gifford, a male employee in AND, testified that Donohue "just doesn't give women, that I have observed, any credibility for what they're saying, or even acknowledge they said it, in some cases." Gifford Dep. at 80. He also testified that Donohue gave male employees "preference in program responsibilities, which included apparent forgiveness for slippag[es] in schedule and orcosts," while treating female employees with similar difficulties dismissively. Id. at 20-21. Another male employee, Dr. Charles Overby, testified that Donohue treated women in a "sexist" and "demeaning" manner. Overby Dep. at 40.
Both men pointed to specific events to substantiate their testimony. Gifford described an incident in which Donohue turned his back on a female subordinate who disagreed with him in a meeting. Gifford Dep. at 79; see also id. ("[Donohue] turns away from it and refuses to deal with it when women are making these comments. He just turns to someone else and goes on with his agenda, as opposed to when a man . . . makes that type of statement."). And Overby related an episode in which Donohue was "cavalier and rude" to a high-ranking female administrator in a belittling way -- essentially telling her that "[y]ou don't have to worry your head about that." Overby Dep. at 39. In Aka v. Washington Hospital Center, we recognized that evidence "of discriminatory statements or attitudes on the part of the employer" may support a verdict for a Title VII plaintiff. 156 F.3d at 1289; see also Dunaway v. Int'l Bhd. of Teamsters, 310 F.3d 758 (D.C. Cir. 2002) (reversing a grant of summary judgment to an employer in a Title VII case where, inter alia, a supervisor had made disparaging comments about the plaintiff's gender and ethnic background). When viewed in conjunction with Czekalski's strong evidence of pretext, this testimony would permit a reasonable jury to rule in her favor.
. . . But the fact that Donohue once promoted Czekalski cannot immunize him from liability for subsequent discrimination, nor is it alone sufficient to keep this case from the jury. In light of all of Czekalski's evidence, a reasonable trier of fact could conclude that Donahue reassigned her for a discriminatory reason.
Because we find that a reasonable jury could render a verdict in favor of Czekalski, the magistrate judge's grant of summary judgment in favor of the government is Reversed.
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Alan R. Kabat, The Bernabei Law Firm, PLLC, 1775 T Street, N.W., Washington, D.C. 20009-7124
tel. (202) 745-1942 (ext. 242); fax (202) 745-2627; email:
Kabat@BernabeiPLLC.com
