United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 17, 2007 Decided November 2, 2007

No. 06-5155

DOROTHY GREER,

APPELLANT

v.

HENRY M. PAULSON, JR., SECRETARY,

UNITED STATES DEPARTMENT OF TREASURY,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 01cv01398)

Gregory S. Wagner argued the cause for appellant. With

him on the briefs were Elizabeth B. Sandza and Michael F.

McBride.

Andrea W. McBarnette, Assistant U.S. Attorney, argued the

cause for appellee. With her on the brief were Jeffrey A. Taylor,

U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attorney.

Before: SENTELLE, ROGERS and GRIFFITH, Circuit Judges.

Opinion for the Court filed by Circuit Judge ROGERS.
2

1 See Greer v. Paulson, No. 06-5155, at 1 (D.C. Cir. Dec. 6,

2006) . 

ROGERS, Circuit Judge: Upon the conclusion of her

temporary work assignment at the White House, which lasted

for more than one year, appellant Dorothy Greer was scheduled

to return to her job at the Internal Revenue Service (“IRS”).

Instead she requested one month’s annual or sick leave and

transfer within the IRS. When she did not return to work after

the IRS denied her requests and approved only one week’s

leave, she was placed on absent without leave status (“AWOL”).

That status was adjusted in part after she submitted

documentation for several months’ sick leave. Still she did not

return to work. Following the termination of her employment,

Greer filed suit pursuant to Title VII of the Civil Rights Act of

1964 and the Rehabilitation Act of 1973. The district court

granted summary judgment for the Secretary and this court

summarily affirmed in part.1

 We now affirm the grant of

summary judgment on the remaining claims. Although we hold

that absence from the workplace does not bar a hostile

environment claim, Greer’s hostile environment claim fails

because she did not proffer admissible evidence of an incident

that could have shown exhaustion of her administrative

remedies. Greer’s race discrimination claims fail because she

did not exhaust administrative remedies for her termination

claim and did not proffer evidence sufficient to rebut the

Secretary’s legitimate, nondiscriminatory reasons for placing her

on AWOL.

I. 

Greer is an African-American female who began working

as an IRS attorney in 1983. Between 1990 and 1994, she made

numerous complaints about racially offensive behavior in the
3

2 Greer alleges a number of incidents, including finding on her

desk an unsigned memorandum that used the “N” word and invoked

religious imagery and affirmative action in stating that African

Americans “are causing to [sic] many problems,” Greer Dep. 73-74

(Nov. 17, 2004). Other incidents included an IRS official suggesting

that she and other African-American employees who were on their

way to lunch were going out to steal VCRs; an IRS official stating

when Greer was speaking with a colleague that he knew Greer was in

the room because he had seen her broom and cleaning cart outside the

door; an IRS employee asking if she had sold drugs over the weekend

to get the bank deposit money that was sitting on her desk; an IRS

employee saying that African-American employees could buy a lot of

watermelons with their pay raises; an IRS employee saying that a vast

majority of African Americans were on welfare; and her second-line

supervisor and other IRS employees referring to her as “Mrs. Martin

Luther King” and “Queen B” after she complained about racially

offensive remarks in the workplace. See Greer Aff. ¶ 4 (Sept. 20,

2005); Greer Aff. 7 (undated); Greer Dep. 6-10, 20-21, 33, 44-57, 74-

75, 135 (Nov. 17, 2004). 

workplace.2 According to Greer, her second-line supervisor,

Marcus Owens, “reacted in a nonchalant, unconcerned manner”

and “told [her] not to be so sensitive.” Greer Affidavit ¶ 4

(Sept. 20, 2005). One of her reporting supervisors, Harold

Toppall, responded by stating that “people are insensitive . . .

and [she had] to learn to look over things like that.” Greer

Deposition 11 (Nov. 17, 2004). Notwithstanding what she

considered to be a culture at the IRS that was hostile to African

Americans, an opinion based on racial insults she and her

coworkers allegedly experienced, Greer continued to excel,

although not to the extent she thought she was entitled. She was

promoted in 1989 to become a GS-13 Tax Law Specialist and

from 1992 through 1994 her performance appraisals stated that

she “Exceeds Fully Successful.” 

In 1993, Greer filed an Equal Employment Opportunity
4

(“EEO”) Pre-Complaint alleging that she was being treated

unfairly because of complaints she made regarding racially

charged comments in the workplace. Specifically, she asserted

that Owens had inaccurately entered information in her

personnel file regarding an alleged absence that was

inconsistent with the treatment of other employees. Her

grievance was never resolved, but, she claims, her efforts to

improve the work environment earned her a reputation as an

“upstart” (Appellant’s Br. at 8), because she spoke out on racial

issues. 

Greer was absent from her office at the IRS for

approximately sixteen months between January 1994 and April

1995. Three and one half months of sick leave were followed

directly by a temporary work assignment to the White House.

Toward the end of the temporary assignment, Greer received a

telephone message from Garland Carter that her division had

been reorganized and that she would be reporting to him upon

her return to the IRS in the Exempt Organizations Branch.

Although she had never met Carter, Greer had heard “on the

grapevine” (Greer Aff. 4, undated), that Carter had privately

made disparaging remarks about her; these allegedly included

questioning the leave balance she accumulated during her

temporary White House work assignment and suggesting that

she acquired her White House assignment as the result of a

“special,” illicit relationship with a Cabinet member, see id. at

3-5. Additionally, Greer learned that she was to share an office

with two white men whose attitudes toward African Americans

she believed “were very negative.” Greer Dep. 19-21 (Nov. 17,

2004).

On May 1, 1995, the date Greer was scheduled to return to

the IRS from her White House assignment, she telephoned

Carter early in the morning to request use of 160 hours of

annual leave, with immediate effect. As Greer explained later,
5

she and her doctor regarded her office environment at the IRS

as “too stressful” because the pervasive racial hostility there

was adversely affecting her health. Greer Aff. 9 (undated).

Greer believed that her manner of requesting leave followed

office policy, that her request would be treated respectfully and

that it would be granted — as had been the case for coworkers

making similar requests. According to Greer, however, Carter

“had a visceral reaction to [her] . . . [,] raised his voice” during

their conversation, and then “slammed down the phone.” Id. at

1. Carter granted Greer one week of leave and instructed her to

report for duty on Monday, May 8, 1995 or be placed on

AWOL — an unpaid status. Greer did not comply with Carter’s

instruction, and throughout the interactions described below did

not report for duty. She never returned to work at the IRS. 

Initially, instead of reporting to work on May 8, Greer

requested sick leave. Carter required, consistent with IRS

policy, that Greer provide medical documentation to support her

leave request. The documentation she submitted from her

doctor indicated that she could return to work on September 26,

1995, and recommended that she seek a transfer to a less

stressful environment. On May 12, 1995, Greer wrote James

McGovern, the Assistant Commissioner of Employee Plans and

Exempt Organizations, to request an immediate transfer from

Carter’s group as well as the Exempt Organizations Branch, due

to events during the prior 16 months. These included a call by

Carter to verify her performance appraisal while on assignment

to the White House and his alleged indiscreet statements in front

of coworkers about her work attendance. Greer believed other

colleagues had requested transfers without problems in the past,

but her request was denied. 

On May 10, 1995, Greer sought EEO counseling, alleging

that the IRS was hostile to African Americans and detailing

specific instances of mistreatment on racial grounds, including
6

harassment, leave denial and unlawful AWOL designation.

Greer filed a formal complaint in August 1995; the IRS

eventually dismissed some of her claims as untimely or because

she had elected an alternative remedy. After negotiations, a

settlement was reached whereby Greer’s absences in the period

between May and September 1995 were retroactively

designated by Carter as either sick leave or leave without pay

(“LWOP”); however, use of annual leave was denied. Greer’s

absence after September 1995 continued to be classified as

AWOL and a letter dated May 24, 1996 advised her that “due

to your accumulation of excessive AWOL . . . an appropriate

adverse action is being contemplated.” Letter from Garland A.

Carter, Chief, Technical Branch Five, to Dorothy Greer (May

24, 1996). 

Meanwhile, in December 1995, Greer had been selected to

serve on a federal grand jury, which was scheduled to meet

twice weekly for 18 months. The IRS was to pay her for the

days she served. In January 1996, Greer wrote to advise her

IRS supervisors that she had been overpaid for grand jury

service during the first pay period. She suggested that her

supervisors had overpaid her on purpose in “a deliberate attempt

to induce [her] to commit a fraudulent act.” Letter from

Dorothy Greer to McGovern, Owens, and Carter (Jan. 19,

1996). Several months later, Carter discovered that Greer had

also been paid for numerous days when the grand jury had not

met. Greer had not informed him when the grand jury did not

meet, explaining that, based on what she was told upon first

appearing for grand jury service, she expected the federal

district court to inform the IRS about this matter.

On August 13, 1996, the IRS terminated Greer’s

employment, based on her extended absence without leave since

September 26, 1995; her acceptance of unearned pay for grand

jury service (from December 1995 through May 1996); and her
7

failure to follow her supervisor’s instruction to furnish monthly

reports of her grand jury service. Greer filed an administrative

complaint on March 30, 1998. When the IRS failed to act,

Greer filed suit against the Secretary of the Treasury on June 26,

2001 pursuant to Title VII, 42 U.S.C. § 2000e-16, and sections

501 and 504 of the Rehabilitation Act, 29 U.S.C. §§ 791, 794,

alleging race discrimination (including a hostile work

environment), sex discrimination, disability discrimination, and

retaliation. The district court granted summary judgment to the

Secretary. Greer appealed, and in response to the Secretary’s

motion for summary affirmance, this court affirmed the grant of

summary judgment on Greer’s claims of retaliation and gender

and disability discrimination. Our review of the grant of

summary judgment on the remaining claims continues to be de

novo, see Mastro v. Potomac Elec. Power Co., 447 F.3d 843,

849 (D.C. Cir. 2006); Carter v. George Wash. Univ., 387 F.3d

872, 878 (D.C. Cir. 2004), according to Greer as the nonmoving party the benefit of all reasonable inferences in her

favor, see Czekalski v. Peters, 475 F.3d 360, 363 (D.C. Cir.

2007).

II.

In granting summary judgment to the Secretary on the

hostile work environment claim, the district court refused to

consider for purposes of administrative exhaustion Greer’s

evidence concerning three incidents occurring after January

1994. Under Equal Opportunity Commission regulations, an

“aggrieved” employee must consult an agency EEO counselor

within 45 days of any “matter alleged to be discriminatory or,

in the case of personnel action, within 45 days of the effective

date of the action.” 29 C.F.R. § 1614.105(a)(1); see Bowden v.

United States, 106 F.3d 433, 437 (D.C. Cir. 1997). The district

court justified its refusal to consider the post-1994 incidents on

the basis of Greer’s absence from the workplace during the time
8

of her sick leave and temporary work assignment at the White

House. Greer challenges this reasoning, contending that the

pre- and post-1994 incidents are sufficiently linked despite her

extended absence from the office, and that the timely

administrative exhaustion of post-1994 incidents thus extends

to her pre-1994 allegations. More specifically, Greer contends

that her May 10, 1995 EEO counseling session appropriately

exhausted her administrative remedies because she complained

about management’s insistence that she return to the allegedly

hostile environment on May 1, 1995, the denial of annual leave

in May 1995, and Carter’s alleged comment to her union

representative that she had obtained the White House

assignment as the result of a “special” relationship. The

Secretary offers that these incidents are irrelevant and also that

Greer’s contact with the workplace was so limited that “she had

no basis for claiming a hostile work environment existed during

the period that she was away or that any alleged previous hostile

work environment had not been ‘cured.’” Appellee’s Br. at 8

n.4 (quoting Appellant’s Br. at 17 n.7). In the alternative, the

Secretary maintains that Carter’s supposed “special”

relationship comment was supported only by inadmissible

hearsay and thus is insufficient to support the denial of a

motion for summary judgment.

Greer’s hostile work environment claim depends on the

contention that the pre- and post-1994 alleged incidents form

part of a whole. “Because [acts of harassment] may not all

occur within the filing period, the Supreme Court has held

‘[p]rovided that an act contributing to the claim occurs within

the filing period, the entire time period of the hostile

environment may be considered by a court for the purposes of

determining liability.’” Vickers v. Powell, 493 F.3d 186, 198

(D.C. Cir. 2007) (quoting Nat’l R.R. Passenger Corp. v.

Morgan, 536 U.S. 101, 117 (2002)); Singletary v. District of

Columbia, 351 F.3d 519, 526-27 (D.C. Cir. 2003) (citing
9

3 See Holmes v. Utah, Dep’t of Workforce Servs., 483 F.3d

1057, 1063-65 (10th Cir. 2007); Richards v. Dep’t of the Army, 2007

WL 579549, at *3 (6th Cir. Feb. 15, 2007) (unpublished per curiam);

Bray v. Pharmacia Corp./Pfizer, Inc., 231 F. App’x 132, 135 (3d Cir.

2007) (unpublished); Duncan v. Mgr., Dep’t of Safety, 397 F.3d 1300,

1309-10 (10th Cir. 2005); Jensen v. Henderson, 315 F.3d 854, 861-62

Morgan, 536 U.S. at 115). If the incidents are considered as a

whole, then Greer’s May 1995 request for EEO counseling may

constitute administrative exhaustion for all the incidents she

alleges because at least some of them occurred within 45 days

of her counseling request. See 29 C.F.R. § 1614.105(a)(1). By

contrast, if the district court were correct, and her absence from

the workplace constituted a per se preclusion to linking her preand post-1994 claims, then any claim she may have had based

on the pre-1994 incidents was not exhausted. 

 

This court has not spoken on whether an employee’s

absence bars consideration of work-related incidents for

purposes of exhausting a hostile work environment claim. But

in Morgan, the Supreme Court recently reaffirmed that “[t]he

phrase ‘terms, conditions, or privileges of employment’ [of 42

U.S.C. § 2000e-2(a)(1)] evinces a congressional intent ‘to strike

at the entire spectrum of disparate treatment of men and

women’ in employment, which includes requiring people to

work in a discriminatorily hostile or abusive environment.” 536

U.S. at 116 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17,

21 (1993) (internal quotations omitted)). Given this context, the

Supreme Court explained that it is appropriate to consider any

timely incident, even where there is a significant time gap

between that incident and prior allegations, “so long as each act

is part of the whole.” Id. at 118. The five courts of appeals that

have considered this issue agree that employee absence does not

bar consideration of work-related incidents as part of a hostile

environment claim.3

 As the Eighth Circuit held in Jensen v.
10

(8th Cir. 2002); Cornwell v. Robinson, 23 F.3d 694, 704 (2d Cir.

1994); cf. Morrison v. Carleton Woolen Mills, Inc., 108 F.3d 429, 439-

40 (1st Cir. 1997). 

Henderson, 315 F.3d 854, 861-62 (8th Cir. 2002), a hostile

work environment “can be a continuing violation even though

the employee is not working” where the employee claims her

employer drove her out of the workplace due to harassment and

“she has received no indication that the environment of

harassment has changed.” 

We join our sister circuits in rejecting a per se rule against

considering incidents alleged to have occurred while an

employee was physically absent from the workplace. There are

various ways in which a hostile environment may extend

beyond the physical workplace, and thus contribute to and form

part of a hostile environment claim. For example, harassment

and hostile incidents may occur by telephone or in person

during an employee’s communication with her employer while

she is not working or away from the office. See, e.g., Richards

v. Dep’t of the Army, 2007 WL 579549, at *3 (6th Cir. Feb. 15,

2007) (unpublished per curiam). When an employee claims

that her “inability to return to work resulted from the

[employer’s] ill treatment of her,” the Eighth Circuit observed,

communications while on leave may form an essential part of

a hostile environment claim. Jensen, 315 F.3d at 861-62. A per

se rule barring consideration of incidents during a workplace

absence would provide an employer with a perverse incentive

to place on leave an employee for whom it had created a hostile

environment in order to insulate itself from liability. As the

Second Circuit observed, there should be no reward for an

employer “who sought to rid [the worksite]” of certain

employees on the basis of sex or race, by driving them to take

leave, or otherwise escape from the workplace. Cornwell v.

Robinson, 23 F.3d 694, 704 (2d Cir. 1994). Just as an
11

4 Because Greer has alleged that incidents contributing to her

claim occurred within the relevant time period and because her

employer has responded by presenting evidence of “intervening

action” that changed the prior work environment, the court has no

occasion to address whether the fact of her continued employment

alone would have made her claim timely, i.e., the failure-to-remedy

employer’s positive attempts to cure a hostile environment

during an employee’s absence may protect the employer from

liability, any negative actions the employer takes during the

absence should be considered. See, e.g., Tutman v. WBBM-TV,

Inc./CBS, Inc., 209 F.3d 1044, 1049 (7th Cir. 2000). 

It remains for Greer to demonstrate that the post-1994

incidents for which she claims she has exhausted her

administrative remedies are sufficiently linked to the pre-1994

incidents. Although we hold that there is no per se rule against

considering incidents while an employee is out of the

workplace, this does not mean that all incidents are

automatically linked. The Supreme Court has instructed that “if

[the sole timely act] had no relation to the acts [from the earlier

period], or for some other reason, such as certain intervening

action by the employer, was no longer part of the same hostile

environment claim, then the employee cannot recover.”

Morgan, 536 U.S. at 118; see also Vickers, 493 F.3d at 199;

Alfano v. Costello, 294 F.3d 365, 377-78 (2d Cir. 2002). It is

true that the persistence of racial harassment at the time Greer

was scheduled to return to the IRS could defeat summary

judgment. Faragher v. City of Boca Raton, 524 U.S. 775, 787-

88 (1998) (quoting Harris, 510 U.S. at 23); see also Oncale v.

Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998) (citing

Harris, 510 U.S. at 23). But the court cannot infer such

persistence after the passage of time, particularly as the

employer has presented evidence of “intervening action,”

Morgan, 536 U.S. at 118.4

 In view of the modifications to her
12

rationale. To the extent that other courts of appeals may have spoken

on this question, we express no opinion.

workplace and her absence for 16 months it was Greer’s burden

as the non-moving party to “go beyond the pleadings” to proffer

such evidence and “designate specific facts showing that there

is a genuine issue for trial,” Celotex Corp. v. Catrett, 477 U.S.

317, 324 (1986) (quoting FED.R.CIV. P. 56(e)); D.D.C. R. 56.1

(formerly Local Rule 108(h)); see also Burke v. Gould, 286

F.3d 513, 517-18 (D.C. Cir. 2002); Jackson v. Finnegan,

Henderson, Farabow, Garrett & Dunner, 101 F.3d 145, 151

(D.C. Cir. 1996).

In an attempt to demonstrate continuity between pre- and

post-1994 incidents, Greer presented evidence that Carter made

comments of a similar character to racial incidents she claims

to have encountered at the IRS during the period before January

1994. In her deposition, Greer claims: that Carter told her union

representative that she had an illicit relationship with the

director of the Office of National Drug Control Policy; that

Carter suggested this alleged relationship was responsible for

her White House assignment; and that Carter’s comments

reflected the hostile attitude that African Americans were

“amoral” and did not advance on the basis of merit. Greer Dep.

87 (Nov. 17, 2004); see also Greer Aff. 9 (undated). To survive

summary judgment the non-moving party must “produce

evidence . . . capable of being converted into admissible

evidence.” Gleklen v. Democratic Cong. Campaign Comm.,

199 F.3d 1365, 1369 (D.C. Cir. 2000) (citing Celotex Corp., 477

U.S. at 324); FED. R. CIV. P. 56(e). Because Greer’s evidence

about Carter’s statement is “sheer hearsay,” it “counts for

nothing” on summary judgment. Gleklen, 199 F.3d at 1369.

Although Greer may have suffered harm by her union

representative reporting what Carter supposedly said, evidence

of her subjective harm is not the same as evidence of Carter
13

making a hostile comment and does not raise an inference that

her employer took discriminatory action contributing to a

hostile work environment. Greer also could not rely on the

testimony of her union representative. In his affidavit, Greer’s

union representative stated that he did not recall Carter making

the alleged statement, but instead remembered Carter saying

that Greer “may have known someone” because he (Carter) did

not arrange for her temporary work assignment at the White

House. See Pollard Aff. (undated), Appellee’s Br. Add. The

union representative’s affidavit raises no inference of employer

animus or action contributing to a hostile environment.

The only admissible evidence of post-1994 incidents —

the denial of leave and the requirement to return to work after

her White House assignment — fails to show that these

incidents form “part of the same actionable hostile work

environment practice” as the alleged pre-1994 incidents. See

Morgan, 536 U.S. at 120; see id. at 117. Not only did Greer’s

new supervisor (Carter) advise her by letter of May 1, 1995 that

upon her return to work they could “discuss arrangements for

leave and assess the workload impact of [her] leave,” but there

are also two sets of intervening events — one by Greer’s

employer, in assigning her to a new supervisor and new branch

as part of a reorganization of her entire division, and one by

Greer, in refusing to return to work. The IRS’s “intervening

action,” Morgan, 536 U.S. at 118, in reassigning Greer within

a newly reorganized workplace is more than a “routine

personnel action[],” Vickers, 493 F.3d at 199, such as a

retirement or a promotion. 

In response to the “intervening action” proffered by the

IRS, Greer has presented no evidence from which a reasonable

jury could infer that her new supervisor was “perpetuating” or

“condoning,” id., a racially hostile environment allegedly

created by a previous supervisor in her former branch. Absent
14

such a showing, the May 1995 denial of Greer’s leave requests

and the requirement that Greer return to work are too

“obviously different” from the earlier alleged racial harassment

incidents to form “part of the same hostile work environment”

claim, id. These incidents are not of the same character, for

example, as the showing in Vickers where an objectionable

supervisor retired but “nothing in the record . . . show[ed] that

[the] succession was in any way intended to address the [prior]

environment” and instead there was evidence “that her

harassment intensified after the change in management.” Id. at

199-200. A facially neutral leave or transfer decision may

sometimes form part of a hostile environment claim where an

employee can show it contributed to the hostile workplace, see,

e.g., id. at 198-200, but the ordinary supervisory actions here do

not raise an inference that the pre-1994 hostile environment

continued during Greer’s absence, see, e.g., Alfano, 294 F.3d at

377. 

Although Greer does aver that she was assigned to an office

with two white men who she claims had contributed to the

racially hostile environment in the past, she does not assert that

any of her supervisors had denied a request to place her in a

different office within Carter’s group. It is telling that,

according to Greer, the Assistant IRS Commissioner

(McGovern) had “stated in a recent grievance response” that

“Carter was a new Branch Chief; in charge of a new branch; had

no prior history with Ms. Greer; needed technical employees;

and was willing to establish a working relationship with Ms.

Greer on a clean slate.” Greer Aff. 10 (undated) (emphasis

omitted). Greer thus pointed to no evidence suggesting that her

work environment would not have been remedied if she had

returned to the workplace and sought redress there from a new

supervisor for whom she had not previously worked.

 

 Because Greer has proffered no admissible evidence of a
15

5 See 29 C.F.R. § 1614.105(a)(2); Harris v. Gonzales, 488

F.3d 442, 444 (D.C. Cir. 2007); Stewart v. Ashcroft, 352 F.3d

422, 425 (D.C. Cir. 2003).

sufficient link between the pre- and post-1994 incidents, she has

failed to raise a genuine issue that she exhausted administrative

remedies for this claim and thus summary judgment was

appropriately granted to the Secretary. 

III.

There are two elements to Greer’s race discrimination

claim: the termination of her employment and the AWOL

designation. On neither element has she shown that summary

judgment was inappropriately granted.

First, Greer has failed to show that she exhausted the

termination claim because she offered no evidence that she had

met with an EEO counselor within 45 days of the termination of

her employment. See 29 C.F.R. § 1614.105(a)(1). Nor has she

presented any basis for equitable tolling of the 45-day period.5

By contrast, the Secretary timely proffered an EEO Counseling

Report suggesting that the claimed meeting did not occur.

Hence, the Secretary was entitled to summary judgment on this

claim. Although Greer attempted to show exhaustion upon

moving for reconsideration of the grant of summary judgment,

Federal Rule of Civil Procedure 60(b) does not afford her an

opportunity to retry her case, see Smalls v. United States, 471

F.3d 186, 191 (D.C. Cir. 2006), and she is not in a position to

show that the tardy affidavits by herself and a colleague were

previously unavailable. Greer’s contention that her

post-judgment affidavit was sufficient to rebut the Secretary’s

evidence of her failure to exhaust administrative options is

untimely. Moreover, the affidavits do not identify the EEO
16

counselor by name or provide other specific facts relevant to

showing that such a meeting in fact occurred. Even if

independent corroborating evidence would have been

unnecessary had Greer proffered the affidavits before the grant

of summary judgment, it was within the district court’s

discretion to require this afterwards. Consequently, had Greer

appealed the denial of her motion for reconsideration, which she

has not, there would be no basis for the court to conclude that

summary judgment had been inappropriately granted on the

termination claim. Cf. id.

Second, Greer failed to meet her burden on the AWOL

designation, albeit not for failure to exhaust or the reasons

provided by the district court. The district court found that

Greer, as a member of a protected class alleging that similarly

situated white employees were given preferential treatment

regarding leave decisions, has met the first two elements needed

for a race discrimination claim. See Holbrook v. Reno, 196 F.3d

255, 261 (D.C. Cir. 1999) (citing McDonnell Douglas Corp. v.

Green, 411 U.S. 792, 802 (1973)). The district court, however,

ruled that Greer failed to state a prima facie case because she

had not shown that either the AWOL time later adjusted (from

May 1 through September 26, 1995) or the time not adjusted

(from October 1, 1995 through the termination of Greer’s

employment on August 13, 1996) was an adverse personnel

action. In the district court’s view, the conversion of Greer’s

pre-September 26, 1995 AWOL time to sick leave and LWOP

would prevent a reasonable juror from finding this period of

time was an adverse action; the non-converted AWOL time

could not qualify because a leave denial was not an “objectively

tangible harm” and Greer was compensated for the annual leave

her employer refused to let her use. The district court’s ruling

was a legal error because a diminution in pay or benefits can

suffice even when the employer later provides back pay.

 
17

Greer’s employer classified her placement on AWOL as an

adverse action, which could be the basis of further sanctions, as

occurred here. Also, after the adjustment of her leave in the

initial period, she remained on LWOP for a part of that time.

Hence, the adjusted as well as the unadjusted AWOLdesignated periods (except for the days she served on the grand

jury) were “adverse.” See Brown v. Brody, 199 F.3d 446, 457

(D.C. Cir. 1999); see also Czekalski, 475 F.3d at 365; Broderick

v. Donaldson, 437 F.3d 1226, 1233 (D.C. Cir. 2006). As the

Supreme Court recently observed in Burlington Northern &

Santa Fe Railway Co. v. White, 126 S. Ct. 2405, 2417-18 (June

22, 2006), a suspension without pay, even where an employer

later provided back pay, could be “a serious hardship” to a

reasonable employee, and thus “materially adverse.” Greer

proffered her testimony on the serious hardship she experienced

as a result of her AWOL status and a letter regarding personal

bankruptcy and two real estate foreclosures of her rental

properties in August 1996 and February 2000. Her affidavit

lists among her damages for compensation money borrowed for

education and therapy for her disabled child. She also avers that

the LWOP and AWOL designations remained negative marks

on her employment record, adversely affecting her receipt of

employment benefits and potentially jeopardizing her future

employment opportunities. Because Greer presented evidence

raising a genuine issue that she experienced a demonstrable

“effect” involving “objectively tangible harm,” Brown, 199 F.3d

at 455, 457, she has met the test for adverse action and thus has

stated a prima facie claim of race discrimination.

In moving for summary judgment, however, the Secretary

presented legitimate non-discriminatory reasons for the AWOL

designation. “After the employer offers a non-discriminatory

justification for its actions, the McDonnell Douglas [411 U.S.

792 (1973)] framework falls away, and [the court] must

determine whether a reasonable jury . . . ‘could infer
18

discrimination from the combination of (1) the plaintiff’s prima

facie case; (2) any evidence the plaintiff presents to attack the

employer’s proffered explanation for its actions; and (3) any

further evidence of discrimination that may be available to the

plaintiff.” Vickers, 493 F.3d at 195 (quoting Aka v. Wash.

Hosp. Ctr., 156 F.3d 1284, 1289 (D.C. Cir. 1998)). Greer has

failed to proffer evidence that would raise a genuine issue

regarding the Secretary’s legitimate non-discriminatory reasons

for the AWOL designation. See Reeves v. Sanderson Plumbing

Prods., Inc., 530 U.S. 133, 148-49 (2000); Czekalski, 475 F.3d

at 366. The IRS gave two reasons for the initial AWOL

designation: Greer’s skills were needed to handle the office

workload in her new assignment and she had failed to discuss

her leave request prior to the first day she was due to return

from her White House assignment. Greer has presented no

evidence to dispute the workload justification or to explain,

other than hinting that work was hectic in the White House

Executive Office, why she failed to follow IRS procedures for

requesting leave time in advance. The IRS offered two

additional reasons for refusing to rescind Greer’s AWOL

designation in May 1996: the fact that Greer was medically

cleared to return to work but never did, and the concern that she

owed money to the government for grand jury service she did

not render, for which annual leave would be used to reimburse

the government. Greer’s attempts to rebut these defenses also

fail. 

First, Greer sought to show that the Secretary’s claim that

she was medically cleared to return to work was false. Her

evidence consisted of her doctor’s notes and her deposition.

The first note from her doctor stated that Greer was under his

care from May 9 through July 28, 1995, for “a stress related

condition which appears to be in response to difficulties

experienced in her work environment.” Note by Henry W.

Dove, M.D., Arlington Psychiatric Group, P.C. (July 28, 1995).
19

A second note from her doctor stated that Greer was “cleared

for return to duty as of 9-26[-95] preferably in a position

removed from current work environment.” Note by Henry W.

Dove, M.D., Arlington Psychiatric Group, P.C. (Sept. 26, 1995).

Although Greer interprets her doctor’s notes to include a

condition precedent that she be transferred, the notes only

recommended that “Greer seek a new work assignment” (July

1995) and stated an opinion that “Greer’s best health interest

would be served by transfer [to a] work environment with less

stress” (Sept. 1995). Thus, Greer has raised no genuine issue

regarding her ability to return to work as of September 26, 1995

or presented evidence from which a reasonable juror could infer

that her employer could not “reasonably believ[e]” that she was

cleared to return. See Gleklen, 199 F.3d at 1369; see also

Fischbach v. Dist. of Columbia Dep’t of Corr., 86 F.3d 1180,

1183 (D.C. Cir. 1996). 

Second, Greer sought to show that the IRS’s concern that

she owed money to the government for grand jury service

between December 1995 and May 1996 was false. Greer does

not contest that she received compensation to which she was not

entitled for days she did not serve on the grand jury, but rather

avers that she committed no wrongdoing by failing to inform

her employer when the grand jury did not meet because she was

unaware she needed to do so. See Greer Dep. 25-32 (Dec. 9,

2004). This explanation is belied by a letter from the district

court that Greer herself submitted to Carter, Owens and

McGovern in December 1995. The letter stated that “[i]t is the

juror’s responsibility to deliver th[e] certificate [sent monthly

by the court to the juror’s address] to their place of employment

for verification of dates of attendance at the Court.” Letter from

U.S. Dist. Ct. for the Dist. of Columbia (Dec. 8, 1995). Greer

does aver that she was unaware the overpayments continued

until May 1996 and that when she became aware she wrote a

second letter expressing her desire to repay the government and
20

requesting an accounting. The grand jury overpayment was not

resolved until December 1996. The record suggests a

regrettable series of apparent miscommunications, particularly

in the period between Greer’s first and second letters, but there

is no evidence from which a reasonable juror could infer that

the IRS’s citing of Greer’s acceptance of overpayment as a

reason for the AWOL designation was motivated by racial

animus and hence pretextual, particularly in the absence of

evidence that the IRS could not “reasonably believe[]” that

Greer had accepted government funds for grand jury service she

did not render. See Gleklen, 199 F.3d at 1369.

Third, Greer sought to show that the failure of her

supervisors (Owens and Carter) to follow regular IRS personnel

procedures was pretextual. Although an employer’s violation

of its own procedures can be evidence of pretext, see, e.g.,

Jones v. Wash. Metro. Area Transit Auth., 205 F.3d 428, 434

(D.C. Cir. 2000), Greer admitted in her deposition that Carter’s

failure to inform her of promotion opportunities during her

White House assignment was not a race-based grievance. See

Greer Dep. 102 (Nov. 17, 2004). Her testimony that Carter and

his secretary submitted attendance records without her

knowledge in October 1995 does not raise a genuine issue of

whether the IRS failed to follow procedures during her absence

from work because she identifies no regulation that they

violated. Even if she had, it is doubtful that these incidents

would give rise to an inference of racial discrimination

sufficient to rebut the Secretary’s legitimate reasons for the

AWOL designation. See, e.g., Fischbach, 86 F.3d at 1183

(citing Johnson v. Lehman, 679 F.2d 918, 922 (D.C. Cir. 1982));

Alfano, 294 F.3d at 377-78. Greer does point to IRS policy in

contending that Owens’ termination of her employment while

an EEO complaint was pending against him violated the

requirement of an “impartial” decisionmaker. See INTERNAL

REVENUE MANUAL § 0752.43(12)(4) (1994). But Greer’s
21

counsel conceded during oral argument that he was “not sure

that the record reflects that [Owens was involved in the AWOL

designation].” Oral Arg. Tape (Sept. 17, 2007) at 27:23.1. 

For these reasons, Greer’s assertion that she could not

return to work due to “a blatantly hostile environment”

(Appellant’s Br. at 11), cannot prevent the grant of summary

judgment on the AWOL designation. Absent evidence to rebut

her employer’s legitimate non-discriminatory reasons for the

designation, the evidence of race-based incidents prior to 1994

is insufficient to demonstrate that summary judgment was

inappropriately granted. See, e.g., Czekalski, 475 F.3d at 366-

68 (citing Aka, 156 F.3d at 1288-89); Barbour v. Merrill, 48

F.3d 1270, 1277 (D.C. Cir. 1995). Even assuming Greer’s pro

se complaint alleged a form of constructive discharge through

involuntary leave, she has proffered no evidence of the requisite

“aggravating factors,” Mungin v. Katten Muchin & Zavis, 116

F.3d 1549, 1558 (D.C. Cir. 1997) (citing Clark v. Marsh, 665

F.2d 1168, 1174 (D.C. Cir. 1981)), and failed to exhaust her

hostile work environment claim. Consequently, Greer has

failed to raise a genuine issue of a “graver claim,” Pa. State

Police v. Suders, 542 U.S. 129, 149 (2004) (emphasis omitted),

that racial discrimination made “working conditions so

intolerable that a reasonable person would have felt compelled

to resign,” id. at 147, or as here, to go on unauthorized leave

rather than return to work and seek redress there.

Accordingly, we affirm the grant of summary judgment.