United States Court of Appeals 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 6, 2010 Decided June 17, 2011 

No. 10-7026 

NICHOLAS GELETA, 

APPELLANT

v. 

VINCENT GRAY, MAYOR, DISTRICT OF COLUMBIA AND 

DEPARTMENT OF MENTAL HEALTH, 

APPELLEES

Appeal from the United States District Court 

for the District of Columbia 

(No. 1:06-cv-01822) 

Ellen K. Renaud argued the cause for appellant. With her 

on the briefs were Richard L. Swick and David H. Shapiro. 

Stacy L. Anderson, Assistant Attorney General, Office of 

the Attorney General for the District of Columbia, argued the 

cause for appellees. With her on the brief were Peter J. 

Nickles, Attorney General, Todd S. Kim, Solicitor General, 

and Donna M. Murasky, Deputy Solicitor General. 

Before: GINSBURG, HENDERSON, and GRIFFITH, Circuit 

Judges. 
2 

Opinion for the Court filed by Circuit Judge GRIFFITH. 

 GRIFFITH, Circuit Judge: Appellant Nicholas Geleta 

alleges he was transferred to a position of less responsibility 

within the District of Columbia Department of Mental Health 

in retaliation for his statements corroborating a claim of racial 

discrimination against a Department official. The district 

court granted summary judgment for the District on the 

ground that Geleta failed to show that his transfer was a 

materially adverse employment action. For the reasons set 

forth below, we reverse and remand to the district court for 

further proceedings. 

I 

In 2001, appellant Nicholas Geleta helped the 

Department of Mental Health obtain a five-year grant from 

the U.S. Department of Health and Human Services (HHS) 

for a citywide mental health initiative for children with 

serious emotional disorders and their families. The project, 

known as D.C. Children Inspired Now Gain Strength (DC 

CINGS), sought to unite various children’s mental health 

programs throughout the District into a single system of care. 

In April 2002, Geleta became DC CINGS’s Project Director, 

a position that involved supervising approximately twenty 

employees and overseeing the planning, implementation, and 

evaluation of DC CINGS operations. 

In June 2004, as part of its annual grant reauthorization 

process, HHS identified several terms and conditions DC 

CINGS needed to satisfy to ensure continued funding. These 

involved housekeeping matters such as submitting quarterly 

reports, creating communications and sustainability plans, and 

filling a particular position by a certain date. Four months 

later, in October 2004, representatives from HHS visited DC 

CINGS to assess the program’s progress and compliance with 
3 

grant conditions. The site visitors issued a report on 

November 15, 2004, discussing the project’s strengths and 

offering various recommendations for improvement. The 

report singled out Geleta’s “dedicated leadership” as one of 

the project’s strengths, Def. Ex. B, at 14, and recommended, 

among other things, targeting services to particular 

subgroups, expanding outreach efforts, and increasing 

community involvement in program decisionmaking, id. at 3-

5. The report also announced that a follow-up visit would 

occur in six months to review progress on the 

recommendations, id. at 5, and reiterated that failure to 

comply with the terms and conditions of the reauthorization 

“may result in . . . suspension of funding,” id. at 6. 

On October 12, 2004, about a month before HHS issued 

its report, Geleta attended a meeting with several other senior 

Department of Mental Health officials, including Velva 

Spriggs, Geleta’s direct supervisor; Ella Thomas, the Director 

of Policy and Planning and Spriggs’s supervisor; and Mary 

Phillips, the Director of the Department’s Juvenile 

Assessment Center. At the meeting, Spriggs, a black woman, 

and Phillips, a white woman, had a heated argument over 

whether Phillips reported to Spriggs. According to Spriggs, 

Phillips called her a “bitch” and said, “My mother told me not 

to deal with people of your kind.” 

Spriggs filed a complaint with the District’s Equal 

Employment Opportunity Office (EEOO) alleging racial 

discrimination. Following an investigation, on January 12, 

2005, the EEOO submitted a report to the Department along 

with written statements from Geleta and the others who were 

at the October 12 meeting. In his statement, Geleta 

corroborated Spriggs’s claims and said that he believed 

Phillips’s conduct toward Spriggs “could be interpreted as 

racially charged.” Statement of Nicholas Geleta 2 (Dec. 21, 
4 

2004). The EEOO report concluded that a preponderance of 

the evidence supported a finding that Spriggs had been the 

victim of racial discrimination in violation of D.C. Code § 2-

1402.11. 

According to Geleta, sometime in late February 2005 

Thomas told him he needed to find a new position. Decl. of 

Nicholas Geleta ¶ 4. Thomas declined to give a reason why, 

but Geleta alleges it was because he had supported Spriggs’s 

discrimination charge. Thomas relieved Geleta of his duties 

as Project Director on March 3, 2005, and detailed him to the 

Department’s Office of Accountability (OA). Geleta claims 

his new job at OA had significantly narrower and less 

important responsibilities than his previous position at DC 

CINGS. For example, according to Susan Curran, Geleta’s 

first supervisor at OA, during the time she worked with 

Geleta he did not have a job description, but instead worked 

as her “right arm” in helping to “clear up a backlog” of 

treatment center applications. Decl. of Susan Curran ¶ 8. 

After approximately eight months at OA, Geleta became its 

Residential Treatment Center Certification and Monitoring 

Projects Manager. He entered the position at Grade 14, Step 

6, the same grade and one step higher than he had been at DC 

CINGS. In October 2007, the District converted Geleta’s 

position at OA to a Management Supervisory Service 

position. Although his job duties did not change, he received 

a substantial pay raise. 

 On October 23, 2006, Geleta filed a complaint in the 

district court alleging retaliation under Title VII of the Civil 

Rights Act of 1964. Title VII prohibits discrimination by an 

employer against an employee because of the employee’s 

“race, color, religion, sex, or national origin.” 42 U.S.C. 

§ 2000e-2(a). Title VII’s anti-retaliation provision further 

prohibits employer actions that discriminate against an 
5 

employee because the employee has “made a charge, testified, 

assisted, or participated in any manner” in a Title VII 

“investigation, proceeding, or hearing.” Id. § 2000e-3(a). The 

district court granted the District’s motion for summary 

judgment on February 19, 2010. We have jurisdiction over 

Geleta’s appeal under 28 U.S.C. § 1291. 

II 

 Summary judgment is appropriate when “the movant 

shows that there is no genuine dispute as to any material fact 

and the movant is entitled to judgment as a matter of law.” 

Fed. R. Civ. P. 56(a). We review a grant of summary 

judgment de novo, drawing all reasonable inferences from the 

evidence in the light most favorable to the nonmoving party. 

Salazar v. Wash. Metro. Area Transit Auth., 401 F.3d 504, 

507 (D.C. Cir. 2005). 

 We analyze Title VII retaliation claims under the familiar 

three-step framework of McDonnell-Douglas Corp. v. Green, 

411 U.S. 792 (1973), as we restated it in Brady v. Office of 

Sergeant at Arms, 520 F.3d 490 (D.C. Cir. 2008), and Jones 

v. Bernanke, 557 F.3d 670 (D.C. Cir. 2009). To make out a 

prima facie case of retaliation, a plaintiff must show “(1) that 

he engaged in statutorily protected activity; (2) that he 

suffered a materially adverse action by his employer; and 

(3) that a causal link connects the two.” Gaujacq v. EDF, Inc., 

601 F.3d 565, 577 (D.C. Cir. 2010) (quoting Jones, 557 F.3d 

at 677). “[W]here an employee has suffered an adverse 

employment action and an employer has asserted a legitimate, 

non-discriminatory reason for the decision,” however, 

whether the plaintiff has made out a prima facie case is no 

longer relevant. Brady, 520 F.3d at 494. Rather, “a court 

reviewing summary judgment looks to whether a reasonable 

jury could infer retaliation from all the evidence, which 
6 

includes not only the prima facie case but also the evidence 

the plaintiff offers to attack the employer’s proffered 

explanation for its action and other evidence of retaliation.” 

Gaujacq, 601 F.3d at 577 (quoting Jones, 557 F.3d at 677) 

(internal quotation mark omitted). 

Drawing all reasonable inferences from the evidence in 

Geleta’s favor, we conclude a reasonable jury could find that 

he suffered an adverse employment action when the District 

transferred him away from his position as Project Director of 

DC CINGS and that the District’s proffered explanation for 

the transfer is a pretext for retaliation. Accordingly, we find 

“a material dispute on the ultimate issue of retaliation,” Jones, 

557 F.3d at 678, and reverse the district court’s grant of 

summary judgment for the District. 

A 

 We consider first whether a reasonable jury could 

conclude that Geleta suffered a materially adverse 

employment action. “An employment action is materially 

adverse where it ‘well might have dissuaded a reasonable 

worker from making or supporting a charge of 

discrimination.’” Pardo-Kronemann v. Donovan, 601 F.3d 

599, 607 (D.C. Cir. 2010) (quoting Burlington N. & Santa Fe 

Ry. Co. v. White, 548 U.S. 53, 68 (2006)). A “lateral 

transfer”—that is, a transfer involving “no diminution in pay 

and benefits”—may qualify as a materially adverse 

employment action if it “result[s] in ‘materially adverse 

consequences affecting the terms, conditions, or privileges’ of 

the plaintiff’s employment.” Id. (quoting Stewart v. Ashcroft, 

352 F.3d 422, 426 (D.C. Cir. 2003)). 

 Geleta contends that he suffered a materially adverse 

employment action when he was transferred to OA because 

he lost all supervisory responsibilities and experienced 
7 

significantly diminished programmatic responsibilities. See 

Czekalski v. Peters, 475 F.3d 360, 364 (D.C. Cir. 2007) 

(“[W]ithdrawing an employee’s supervisory duties . . . 

constitutes an adverse employment action.” (quoting Stewart, 

352 F.3d at 426) (internal quotation marks omitted)); id. at 

365 (observing that “reassignment . . . with significantly 

diminished responsibilities” would constitute an adverse 

employment action). The District responds that Geleta’s new 

position at OA carried the same salary, benefits, and prestige 

as his previous position at DC CINGS, and that aside from 

supervisory responsibilities his new position “was in all other 

respects comparable” to the old one. Appellees’ Br. 26-27. In 

particular, the District relies on the official position 

description for Geleta’s job as Residential Treatment Center 

Certification and Monitoring Projects Manager, which lists 

numerous important responsibilities such as developing and 

administering “operational programs” and serving as “the 

single point of coordination” for “all investigations initiated 

by [OA].” Def. Ex. G. 

 We think a reasonable jury could find that Geleta’s 

transfer was a materially adverse employment action. To 

begin with, Geleta produced evidence that he suffered a 

complete loss of supervisory responsibilities in the transfer. 

According to the official position description for his job at 

DC CINGS, as Project Director Geleta supervised a staff of 

approximately twenty employees. According to his deposition 

testimony, however, after he moved to OA he did not 

supervise any employees. Susan Curran, Geleta’s initial 

supervisor at OA, confirms this. See Decl. of Susan Curran 

¶ 8. 

Geleta also presented evidence that his position at OA 

involved narrower and less important programmatic 

responsibilities than his previous position at DC CINGS. At 
8 

his deposition, Geleta testified that his role at DC CINGS was 

to “try[] to fund and try to get the State to work together to 

build coherent unified systems” for “children’s mental health 

services.” Geleta Dep. 45-46. His official position description 

further states that he was “responsible for providing 

leadership in the overall project planning, organization, 

direction, coordination, monitoring, implementation, and 

evaluation of all aspects of the DC CINGS Project and its 

component parts.” Def. Ex. K. According to Geleta, his work 

at OA is very different. In his deposition, he claimed that his 

current job focuses primarily on three activities: certifying 

treatment centers, reviewing treatment centers’ compliance 

with District licensing requirements, and monitoring a 

database of complaints. See Geleta Dep. 90-92. No longer is 

he the leader of an important citywide effort to create a 

unified children’s mental health system. Instead, he certifies, 

reviews, and monitors. Further, according to Curran, during 

the time she worked with Geleta at OA he was not 

“responsible for developing or implementing any programs or 

projects.” Decl. of Susan Curran ¶ 8 (emphasis added). 

Rather, “[h]is main duty was to help [her] clear up a backlog 

of residential treatment center certification applications.” Id.

 The District contends that these statements by Geleta and 

Curran are “conclusory” and “lack context” and are therefore 

improper evidence for summary judgment. See Greene v. 

Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999) (stating that 

“conclusory” statements that lack “supporting facts” cannot 

defeat a summary judgment motion). We disagree. Geleta’s 

and Curran’s statements are unlike the sort of allegations 

unsupported by facts that we have refused to consider in other 

cases. See, e.g., Ass’n of Flight Attendants-CWA v. U.S. Dep’t 

of Transp., 564 F.3d 462, 466 (D.C. Cir. 2009) (refusing to 

consider claim where affiant demonstrated no “personal 

knowledge” of the matter); Greene, 164 F.3d at 675 (refusing 
9 

to consider allegation that employer hired applicant with “less 

experience” because affiant provided no “supporting facts” 

for her claim). Geleta’s lack of supervisory responsibilities is 

a fact known personally to Geleta and Curran, as is the fact 

that Geleta’s main duty at OA was to help Curran clear a 

backlog of certification applications. No further factual 

background is necessary to support these claims. 

 In sum, Geleta provides evidence that he went from 

overseeing a broad-based mental health unification project at 

DC CINGS in which he supervised twenty employees to a 

desk job at OA where he supervised no one and spent his time 

clearing a bureaucratic backlog. This sort of significant 

change might well dissuade a reasonable worker from 

speaking out in support of a charge of discrimination. Geleta 

has provided sufficient evidence for a reasonable jury to 

conclude that he suffered a materially adverse employment 

action. 

B 

 A reasonable jury could also conclude that the District’s 

proffered reasons for transferring Geleta are pretextual. Once 

an employer articulates a legitimate, nondiscriminatory 

reason for its adverse employment action, the “central 

question” on summary judgment is whether “the employee 

produced sufficient evidence for a reasonable jury to find that 

the employer’s asserted non-discriminatory reason was not 

the actual reason and that the employer intentionally 

discriminated [or retaliated] against the employee on the basis 

of race.” Brady, 520 F.3d at 494. Put differently, once an 

employer offers a nondiscriminatory reason for its action, “to 

survive summary judgment the plaintiff must show that a 

reasonable jury could conclude from all of the evidence that 

the adverse employment decision was made for a 

discriminatory [or retaliatory] reason.” Kersey v. Wash. 
10 

Metro. Area Transit Auth., 586 F.3d 13, 17 (D.C. Cir. 2009) 

(quoting Lathram v. Snow, 336 F.3d 1085, 1088 (D.C. Cir. 

2003)) (alteration in original); see also Desmond v. Mukasey, 

530 F.3d 944, 963-64 (D.C. Cir. 2008). 

 In its brief, the District contends that Geleta’s transfer 

was a “legitimate and necessary part of the realignment that 

[the Department of Mental Health] implemented in an effort 

to comply with multiple federal funding mandates imposed by 

[HHS].” Appellees’ Br. 33. The District points to the several 

“priority recommendations” listed in the November 2004 

HHS site visit report, as well as the report’s warning that 

failure to comply with the terms and conditions of the 2004 

reauthorization grant could “result in additional actions, up to 

and including possible suspension of funding.” Def. Ex. B, at 

6. The District claims that “[i]n response to this report, [the 

Department] determined to restructure and eventually 

dismantle the DC CINGS program.” Appellees’ Br. 32. 

 We think a reasonable jury could find that the District’s 

proffered reasons are a pretext for retaliation.*

 First, the 

District’s reasons for transferring Geleta have changed over 

time. According to Geleta’s deposition testimony, when he 

asked Thomas in February 2005 why he needed to find a new 

position, she told him to make up a reason. Geleta Dep. 82. 

When Geleta asked what she meant, Thomas replied, “[I]t’s 

not performance, you know, it’s just—whatever reason you 

feel—whatever you feel comfortable with.” Id. Then, in its 

response to Geleta’s first set of interrogatories, the District 

stated that Geleta was transferred “because the DC CINGS 

 

*

 The District concedes that Geleta’s statements corroborating 

Spriggs’s complaint were statutorily protected activities. See 42 

U.S.C. § 2000e-3(a) (protecting from retaliation an employee who 

“testifie[s], assist[s], or participate[s] in any manner in an 

investigation” under Title VII). 
11 

program was dismantled and Dr. Geleta had been the Project 

Director for that Program.” Def.’s Resps. & Objections to 

Pl.’s First Set of Interrogs. ¶ 4. On summary judgment and 

now in its brief to this court, however, the District argues that 

Geleta was transferred because the Department of Mental 

Health decided to “realign[]” DC CINGS and implement a 

“new vision” for the program. Appellees’ Br. 33. Such 

shifting and inconsistent justifications are “probative of 

pretext.” EEOC v. Sears Roebuck & Co., 243 F.3d 846, 853 

(4th Cir. 2001); see also Domínguez-Cruz v. Suttle Caribe, 

Inc., 202 F.3d 424, 432 (1st Cir. 2000) (“[W]hen a company, 

at different times, gives different and arguably inconsistent 

explanations, a jury may infer that the articulated reasons are 

pretextual.”); Thurman v. Yellow Freight Sys., Inc., 90 F.3d 

1160, 1167 (6th Cir. 1996) (“An employer’s changing 

rationale for making an adverse employment decision can be 

evidence of pretext.”). 

 Second, a reasonable jury could conclude that the 

District’s claim that it “realigned” DC CINGS to comply with 

federal funding mandates is itself not credible. The District 

argued in its summary judgment motion that it reassigned 

Geleta “as part of its continuing effort to maintain its federal 

funding for the DC CINGS program.” Mem. in Supp. of 

Def.’s Mot. for Summ. J. 13; see also id. (“[I]n an effort to 

comply with the multiple federal funding mandates imposed 

by [HHS], [the Department of Mental Health] changed the 

leadership of the DC CINGS program and sought to take the 

program in a new direction.”). But it is unclear how or why 

transferring Geleta and revising DC CINGS’s “vision” was 

necessary for the program to maintain its funding. The 

November 2004 site visit report stated that failure to comply 

with certain terms and conditions may result in “possible 

suspension of funding,” Def. Ex. B, at 6, but these terms and 

conditions had nothing to do with Geleta’s leadership or DC 
12 

CINGS’s “vision.” Rather, they concerned matters like 

submitting quarterly reports and filling a vacant position. See 

id. at 5-6. The District has produced no evidence that Geleta 

was unable to fill positions or submit reports on time, or that 

transferring him would have any impact on those 

requirements. 

 Further, the terms and conditions in the site visit report 

are the very same terms and conditions found in the 2004 

reauthorization grant, which predated the report by at least 

four months. The District knew about these funding 

conditions for months, but only after Geleta engaged in 

protected activity did it decide to transfer him. A jury could 

reasonably infer pretext from these facts. See Czekalski, 475 

F.3d at 366 (“[O]ne way for a plaintiff to show that an 

adverse employment decision was made for a discriminatory 

[or retaliatory] reason is to ‘show[] that the nondiscriminatory 

explanation the defendant proffered for its decision was 

false.’” (quoting Lathram, 336 F.3d at 1089) (third alteration 

in original)). 

 Also undercutting the District’s claim that transferring 

Geleta was part of an effort “to maintain its federal funding 

for the DC CINGS program” is the fact that the Department 

dismantled DC CINGS within one year of Geleta’s 

reassignment. If the District’s true purpose for “realigning” 

DC CINGS was to ensure the program’s continued funding, it 

seems strange that the Department eliminated the program so 

soon thereafter. 

 Finally, there is evidence in Curran’s declaration that 

Department Director Martha Knisley was angry at Geleta for 

supporting Spriggs and ordered him to be fired. According to 

Curran, Thomas told her in early 2005 that Thomas had 

received instructions from Knisley to fire Geleta. Curran 

further recounts that when Knisley learned Geleta had instead 
13 

been transferred to OA she called Thomas and Curran into her 

office and angrily upbraided them. Curran says Knisley 

warned that not firing Geleta was “a grave mistake” and 

exclaimed, “[D]on’t you know what he’s done?” Decl. of 

Susan Curran ¶ 10. Although these two brief accounts could 

benefit from further factual development, we find them 

sufficiently probative of pretext to warrant a jury’s 

consideration. 

 The District protests that Thomas’s alleged statement to 

Curran is “inadmissible hearsay” and therefore not competent 

summary judgment evidence. See Greer v. Paulson, 505 F.3d 

1306, 1315 (D.C. Cir. 2007) (“‘[S]heer hearsay’ . . . ‘counts 

for nothing’ on summary judgment.” (quoting Gleklen v. 

Democratic Cong. Campaign Comm., Inc., 199 F.3d 1365, 

1369 (D.C. Cir. 2000))). But Thomas’s statement is not 

hearsay. Federal Rule of Evidence 801(d)(2)(D) excludes 

from the hearsay rule “a statement by the party’s agent or 

servant concerning a matter within the scope of the agency or 

employment, made during the existence of the relationship.” 

Because Geleta filed suit against the mayor of D.C. in his 

official capacity, the District is a party to the suit and 

statements by District employees concerning matters within 

the scope of their employment are admissible against the 

District. See Wilburn v. Robinson, 480 F.3d 1140, 1148 (D.C. 

Cir. 2007). Knisley and Thomas were both District 

employees, and Knisley’s alleged instruction to fire Geleta 

and Thomas’s statement relaying this instruction to Curran 

concerned a matter within the scope of their employment. The 

statements therefore fall within Rule 801(d)(2)(D). 

 Viewed in the light most favorable to Geleta, the 

evidence in the record is sufficient for a reasonable jury to 

conclude that the District’s proffered reasons for transferring 

him are pretextual and that he was transferred in retaliation 
14 

for supporting Spriggs’s complaint. The district court erred by 

granting summary judgment for the District. 

III 

 For the foregoing reasons, we reverse the judgment of the 

district court and remand for further proceedings. 

So ordered.