United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 20, 2013 Decided December 24, 2013

No. 12-5130

OLGA HERNANDEZ,

APPELLANT

v.

PENNY SUE PRITZKER, SECRETARY, U.S. DEPARTMENT OF 

COMMERCE,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 1:08-cv-01716)

Alan Lescht argued the cause and filed the briefs for 

appellant.

Carl E. Ross, Assistant U.S. Attorney, argued the cause 

for appellee. With him on the brief were Ronald C. Machen 

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

Attorney.

Before: GARLAND, Chief Judge, and GINSBURG and 

SENTELLE, Senior Circuit Judges.
2

Opinion for the Court filed by Senior Circuit Judge

GINSBURG.

GINSBURG, Senior Circuit Judge: Olga Hernandez, a 

Hispanic woman, appeals the district court’s entry of 

summary judgment for her former employer, the United 

States Department of Commerce, on Hernandez’s claim that 

the Department retaliated against her for filing a complaint of 

workplace harassment based upon her sex and national origin, 

in violation of Title VII of the Civil Rights Act of 1964, 42 

U.S.C. § 2000e–3(a). Specifically, Hernandez claimed the 

Department retaliated by placing her on an unsuitable detail, 

changing her employment status to probationary, and 

terminating her employment. Because no reasonable juror 

could find any of these actions motivated by retaliation, we 

affirm the judgment of the district court. 

I. Background

From 1998 to 2005 Hernandez worked as a Patent 

Examiner at the Patent and Trademark Office (PTO), an 

agency within the Department of Commerce. In May 2006, 

six months after she left the PTO, Hernandez was hired as a 

General Engineer by the Nuclear and Missile Technology 

Division (NMTD), a unit of the Bureau of Industry and 

Security (BIS), which is also within the Department of 

Commerce. She was issued a Notification of Personnel 

Action (SF-50) that indicated hers was a career appointment. 

Although such an appointment is usually subject to a one-year 

probationary period, see 5 C.F.R. §§ 315.801(a), 315.802(a), 

Hernandez’s SF-50 made no reference to probation. 

Hernandez’s new position at the NMTD required her to 

review applications for licenses to export commodities 

relevant to nuclear and missile proliferation. Hernandez was, 
3

by her own account, sometimes confused about her job 

responsibilities, and after a few months one of her colleagues

expressed concern to Hernandez’s second-line supervisor 

about her handling of several cases. In her first performance 

review, which was issued in October 2006, Hernandez

nevertheless received a rating of 3 out of 5 in all areas. Her 

immediate supervisor, Steven Clagett, noted that her 

performance in all areas was “good and ... appropriate for a 

GS-12 with only a partial year of experience.” 

In December 2006 Hernandez filed an informal

complaint of workplace harassment with the Department’s 

Office of Civil Rights, which caused Clagett’s supervisor, 

Steven Goldman, to meet with Hernandez about her concerns. 

At the meeting Hernandez alleged, among other things,

Clagett had unfairly denied her a cash bonus and her 

colleagues had exchanged sexually charged comments in her 

presence. When Hernandez asked Goldman whether she 

could be transferred to another office, he said a transfer would 

be a last resort but he might be able to arrange it if the 

receiving office and Hernandez agreed. Hernandez asked for 

some time to consider how she wanted to proceed, and two 

weeks later asked Goldman in writing to “transfer [her] 

outside of [C]ommerce ... or outside BIS.” Despite having 

been advised by Goldman that he could transfer her only 

within the BIS, Hernandez did not identify any particular 

office within the BIS to which she wanted to transfer. 

In January 2007 Goldman detailed Hernandez to the 

Chemical and Biological Controls Division (CBCD) within

the BIS. Hernandez’s new position required her to review 

applications for licenses to export items such as pumps and 

valves, chemicals, and biological equipment relevant to 

nonproliferation or with foreign policy implications. 

Hernandez was unhappy with the detail because her 
4

background in electrical engineering did not prepare her, in 

her view, for work with biological and chemical material. 

Hernandez claims she then heard from colleagues that there 

were open positions in “the encryption and radar 

departments” of the BIS, to which she believed she was by

background better suited; she asserts she emailed Goldman’s 

supervisor asking for a meeting but he declined. Even so 

Hernandez did not contact Goldman about her unhappiness at 

the CBCD or ask him to move her to another unit. 

In February 2007 Hernandez filed a formal Equal 

Employment Opportunity (EEO) complaint with the 

Department’s Office of Civil Rights. She alleged, among 

other things, the Department had retaliated against her for 

previously having complained about discrimination by 

detailing her “to a chemical engineering job, despite her 

education and experience being in electrical engineering.” 

In April 2007 the Department issued a new SF-50, 

labeled a “correction,” changing Hernandez’s employment

status to probationary. A Department official immediately 

asked for an explanation from a Human Resources employee,

who explained that, although prior federal service may be 

credited toward probation in some circumstances,

Hernandez’s prior service with the PTO could not be credited 

because she had a break in service of more than 30 days and 

because her position at the BIS was different from the one she 

had at the PTO. See 5 C.F.R. § 315.802(b) (“Prior Federal 

civilian service ... counts toward completion of probation 

when the prior service is in the same agency ..., is in the same 

line of work ..., [and] is followed by no more than a single 

break in service that does not exceed 30 calendar days”). 

Hernandez’s appointment form, which made no mention of 

the yearlong probationary period, therefore required 

correction. 
5

Two weeks after changing her status to probationary, the 

Department terminated Hernandez’s employment based upon 

her “failure to demonstrate acceptable performance during 

[the] probationary period.” In the accompanying performance 

review, Clagett explained Hernandez had been rated

satisfactory in October 2006 “largely because her mistakes 

were initially considered to be the result of inexperience, or 

‘learning mistakes.’” Since then, however, it had become

“clear that [her] mistakes are reflective of her performance 

abilities, which are not acceptable for a GS-12 engineer.” 

Clagett noted that while detailed to the CBCD, Hernandez had 

incorrectly processed 32 out of 120 license applications and 6 

out of 17 commodity classifications even though her 

assignments were not particularly difficult and she had been

apprised repeatedly of her mistakes. This performance, 

Clagett concluded, was “below expectations.” 

Soon thereafter Hernandez amended her formal EEO 

complaint to add her termination to the list of allegedly 

retaliatory acts. When more than 180 days had passed 

without a final decision from the Office of Civil Rights, see 

29 C.F.R. § 1614.108(e), Hernandez filed suit in the district 

court claiming, as relevant here, the Department retaliated 

against her for filing an EEO complaint by (1) detailing her to 

the CBCD, (2) changing her status to probationary, and (3) 

terminating her employment. 

The district court entered summary judgment for the 

Department. Hernandez v. Gutierrez, 850 F. Supp. 2d 117, 

125 (D.D.C. 2012). The court first held Hernandez’s detail to 

the CBCD was not an “adverse action” because it “did not 

affect her pay, grade, or job responsibilities” and was done at 

her request. Id. at 122. The court next held Hernandez had 

failed to exhaust her administrative remedies with respect to 

her probationary status because her EEO complaints had not 
6

challenged the change in her employment status; alternatively, 

the court reasoned, the Department “provided a legitimate, 

non-discriminatory reason for the adverse action — to correct 

an administrative error — and [Hernandez] has failed to 

produce sufficient evidence for a reasonable jury to infer that 

it was retaliatory.” Id. at 123. Finally, the court held 

“Hernandez provided insufficient evidence either to discredit 

[the Department’s] asserted non-discriminatory reason for her 

termination — poor performance — or to show that the action 

was retaliatory.” Id. at 124. 

II. Analysis

Title VII prohibits not only outright discrimination by an 

employer against an employee on the basis of his or her “race, 

color, religion, sex, or national origin,” 42 U.S.C. § 2000e–

2(a), but also retaliation based upon an employee’s having 

“made a charge, testified, assisted, or participated in any 

manner” in a Title VII “investigation, proceeding, or 

hearing,” id. § 2000e-3(a). Where, as here, a plaintiff proffers 

only indirect evidence of retaliation, we analyze her claims 

within the framework of McDonnell Douglas Corp. v. Green, 

411 U.S. 792, 802–05 (1973), as simplified by Brady v. Office 

of Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008) and 

Jones v. Bernanke, 557 F.3d 670, 678–79 (D.C. Cir. 2009):

[Once] the employer has proffered a legitimate, nonretaliatory reason for a challenged employment action, 

the central question is whether the employee produced 

sufficient evidence for a reasonable jury to find that 

the employer’s asserted non-retaliatory reason was not 

the actual reason and that the employer intentionally 

retaliated against the employee in violation of Title 

VII. 
7

McGrath v. Clinton, 666 F.3d 1377, 1383 (D.C. Cir. 2012)

(internal brackets and quotation marks omitted). Because the 

Department has offered legitimate, non-retaliatory reasons for 

detailing Hernandez to the CBCD, changing her status to 

probationary, and terminating her employment, the “central 

question” in this case is whether Hernandez has produced 

sufficient evidence for a reasonable jury to find those reasons 

were but pretexts for retaliation. 

A. Detail to the CBCD

The district court rejected Hernandez’s claim that the 

Department retaliated against her by detailing her to the 

CBCD on the ground that the detail “was not an adverse 

action.” 850 F. Supp. 2d at 122. We need not pass upon that 

ground, however. We may assume the detail to the CBCD

was adverse and yet affirm the judgment for the Department 

upon the indisputable ground that Hernandez failed altogether 

to rebut the Department’s legitimate, non-retaliatory 

explanation for its action — viz., “Hernandez requested that 

she be transferred out of her unit.” See Taylor v. Solis, 571 

F.3d 1313, 1320 n.* (D.C. Cir. 2009) (“The court can resolve 

[the central question of retaliation vel non] in favor of the 

employer based either upon the employee’s failure to rebut its 

explanation or upon the employee’s failure to prove an 

element of her case — here that her employer took a 

materially adverse action against her”); Kleiman v. Dep’t of 

Energy, 956 F.2d 335, 339 (D.C. Cir. 1992) (“[W]e may 

affirm on different grounds the judgment of a lower court ‘if 

it is correct as a matter of law’” (quoting United States v. 

Garrett, 720 F.2d 705, 710 (D.C. Cir. 1983)).

Hernandez argues the Department’s explanation is not 

credible because she had no choice but to accept the detail to 

the CBCD. She claims the failure of the Department to offer 
8

her one of the putatively open positions “in the encryption and 

radar departments” of the BIS, which were “more suited to 

[her] background and experience,” effectively forced her “to 

accept the detail [to the CBCD] in order to get away from the 

hostile work environment” at the NMTD. Because the 

Department “gave her no choice in the matter,” Hernandez 

argues, she can “hardly be said to have agreed to the detail” to 

the CBCD. 

Hernandez has not met her burden of producing 

“sufficient evidence for a reasonable jury to find that the 

[Department’s] asserted non-retaliatory reason was not the 

actual reason” for its detailing her to the CBCD. McGrath, 

666 F.3d at 1377 (internal brackets and quotation marks 

omitted). As an initial matter, the only evidence Hernandez 

offers of the alleged vacancies in the encryption and radar 

departments is her own statement claiming two colleagues 

told her about the openings; this of course is “pure hearsay” 

and “counts for nothing in an opposition to summary 

judgment.” Id. at 1383 (internal quotation marks omitted). 

Nor does Hernandez offer any evidence that Goldman knew 

of the alleged vacancies. Even if we were to assume, 

however, there were other positions available within the BIS 

and Goldman was aware of them, the undisputed evidence 

shows Hernandez requested a transfer out of the NMTD, did 

not identify a preferred office within the BIS, and did not 

complain to Goldman about the CBCD even once she was 

there. On these facts, no reasonable jury could find the 

Department’s asserted non-retaliatory reason for detailing 

Hernandez to the CBCD — that she had requested a transfer 

— was a pretext for retaliation. 
9

B. Change in Probationary Status

Pursuant to its authority to implement Title VII as it 

applies to the federal government, the Equal Employment 

Opportunity Commission has established “detailed procedures 

for the administrative resolution of discrimination 

complaints;” a complainant “must timely exhaust these 

administrative remedies before bringing [her] claims to 

court.” Bowden v. United States, 106 F.3d 433, 437 (D.C. 

Cir. 1997). In her formal EEO complaint Hernandez alleged 

the Department retaliated against her by terminating her 

employment but did not allege the Department retaliated by

changing her status to that of a probationer. The district court 

therefore held Hernandez failed to exhaust her administrative 

remedies with respect to her change to probationary status. 

850 F. Supp. 2d at 123. 

In her brief Hernandez advances two arguments that we 

should consider the merits of her change of status claim

despite her failure to raise it in her EEO complaint. First, she 

argues her change of status claim “is related to her wrongful 

termination claim and/or could have been expected to grow 

out of that claim.” On this theory, Hernandez “gave the 

[Department] an opportunity to resolve her” change of status 

claim by raising the “like or related” claim of retaliatory

termination. Weber v. Battista, 494 F.3d 179, 184 (D.C. Cir. 

2007); see also Wiley v. Glassman, 511 F.3d 151, 160 (D.C. 

Cir. 2007). Alternatively, Hernandez says “the claim 

regarding the change in [her] status is not a new claim but 

rather a detail of [her] claim that the agency wrongfully 

terminated her.” On this theory, Hernandez did not need to 

exhaust her allegation that the Department improperly put her 

on probationary status because that allegation was merely 

evidence in support of her claim of retaliatory termination, not 

an independent claim of retaliation. At oral argument 
10

Hernandez expressly abandoned her first theory in favor of 

her second. 

We shall assume without deciding that we may consider 

Hernandez’s change to probationary status as evidence of her 

allegedly retaliatory termination despite her failure to identify 

the change in her administrative complaint. Treating 

Hernandez’s change of status as evidence, however, does not 

avoid the need to evaluate the Department’s stated reason for 

making that change. Evidence must be relevant in order to be 

admissible, and the relevance of the Department’s changing 

Hernandez’s status to probationary depends squarely upon its 

reason for that change. If, as the Department claims, it

changed Hernandez’s status in order to correct a clerical error, 

then the change would not tend to prove the Department went 

on to terminate her with retaliatory intent. See FED. R. EVID.

401 (“Evidence is relevant if: (a) it has any tendency to make 

a fact more or less probable than it would be without the 

evidence; and (b) the fact is of consequence in determining 

the action”). If, on the other hand, the Department’s 

explanation is not credible, then its changing Hernandez’s 

status to probationary — and thereby making it easier to 

terminate her — would indeed tend to prove her termination 

was retaliatory. 

The Department’s explanation for changing Hernandez’s 

status to probationary is supported by the law and by the facts 

of this case. Section 315.801(a)(1) of 5 C.F.R. provides:

“The first year of service of an employee who is given a 

career or career-conditional appointment ... is a probationary 

period when the employee [w]as appointed from a 

competitive list of eligibles.” Hernandez’s appointment form

shows — and she does not dispute — hers was a career 

appointment. Therefore she was subject to a yearlong 

probationary period if she was “appointed from a competitive 
11

list.” Although the Action Code on the copy of Hernandez’s 

appointment form in the record is obscured, the other fields 

on that form are consistent with the Department’s position 

that she was hired from a competitive list, as is the corrected 

form, which reports the Code was “100,” the correct code for 

such a hire. See UNITED STATES OFFICE OF PERSONNEL 

MANAGEMENT, GUIDE TO PROCESSING PERSONNEL ACTIONS

tbl. 9-A (Sept. 2013) [hereinafter OPM Guide], available at

http://www.opm.gov/policy-data-oversight/data-analysisdocumentation/personnel-documentation/processingpersonnel-actions/gppa09.pdf; accord Pervez v. Dep’t of the 

Navy, 193 F.3d 1371, 1374 (Fed. Cir. 1999). The record 

therefore supports the Department’s claim that Hernandez 

was subject to a probationary period under § 315.801(a)(1).* 

Nonetheless, Hernandez maintains she was not hired 

from a competitive list but rather was reinstated; as such, “she 

was not required to complete a probationary period as a 

General Engineer because she had previously completed a 

probationary period when she worked as a Patent Examiner.” 

Although a reinstated employee who completed a 

probationary period in her prior job is indeed exempt from a 

second period of probation, 5 C.F.R. § 315.801(a)(2), there is 

nothing in the record that suggests Hernandez was hired by

reinstatement. Had the Department intended to reinstate 

Hernandez when it first hired her at BIS, it would have coded 

 

* The record also supports the Department’s undisputed contention 

that Hernandez’s prior service at the PTO could not be credited 

towards her probationary period at the NMTD. Prior federal 

civilian service may count toward a probationary period only if, 

among other things, the employee’s prior service was “in the same 

line of work” as her new service, 5 C.F.R. 

§ 315.802(b)(2), and was followed by a “break in service that does 

not exceed 30 calendar days,” id. § 315.802(b)(3). Hernandez was 

hired by the NMTD six months after she left the PTO. 
12

her appointment form as a reinstatement, not as a career 

appointment from a competitive list. Compare OPM Guide

tbl. 9-A (codes used for a competitive appointment) with id.

tbl. 9-C (codes used for reinstatement). Because Hernandez 

has failed to rebut the Department’s legitimate, nonretaliatory reason for changing her status to probationary, the 

change in status is irrelevant and hence inadmissible as 

evidence the reason given for her termination was a pretext. 

C. Termination of Employment

The Department’s stated reason for terminating 

Hernandez’s employment was her “failure to demonstrate 

acceptable performance during [her] probationary period.” 

We agree with the Department that she has “provided no 

evidence, other than her subjective opinion,” to rebut that 

reason. The undisputed evidence is that Hernandez made 

numerous mistakes throughout her tenure at the BIS and that 

both her colleagues and supervisors expressed concern about 

her work both at the NMTD and at the CBCD, and both 

before and after she had lodged her first EEO complaint. In 

fact, Hernandez conceded at her deposition that she was 

sometimes confused about her job responsibilities, and that 

she had particular difficulty with her work at the CBCD. 

Hernandez has little to add in her brief. She complains 

she “was not provided with appropriate training,” but offers 

no evidence that any of her colleagues was provided with 

training or guidance she was denied. Hernandez also 

complains she was “never advised ... her performance was 

unsatisfactory,” but even if this is true, it does not discredit 

the undisputed evidence that her performance was indeed

unsatisfactory. On this record, no reasonable jury could find 

the Department’s stated reason for terminating Hernandez’s 
13

employment was pretextual and the real reason was 

retaliation. 

III. Conclusion

The Department has shown it detailed Hernandez at her 

request, corrected her record only to reflect the probation she 

was required by law to serve, and terminated her employment

because her performance was not satisfactory. Because 

Hernandez has not produced the slightest evidence to show

the Department’s account is a pretext for retaliation, the 

judgment of the district court is 

Affirmed.