United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 19, 2015 Decided February 12, 2016

No. 14-7108

PATRICIA WHEELER,

APPELLANT

v.

GEORGETOWN UNIVERSITY HOSPITAL, ALSO KNOWN AS 

MEDSTAR - GEORGETOWN MEDICAL CENTER,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 1:10-cv-01441)

Donna Williams Rucker argued the cause and filed the 

brief for Appellant.

Ziad Haddad argued the cause for Appellee. On the 

brief was David C. Tobin.

Before: HENDERSON, PILLARD and WILKINS, Circuit 

Judges.

Opinion for the Court filed by Circuit Judge WILKINS.

Appellant Patricia Wheeler, who is African-American, 

charges that she was improperly terminated by her former 
2

employer Georgetown University Hospital (the Hospital), in 

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

U.S.C. § 2000e. Nurse Wheeler claims that her termination 

was the result of racial discrimination. For the reasons set 

forth below, we reverse the District Court’s grant of summary 

judgment to the Hospital and remand for further proceedings. 

I.

Patricia Wheeler was hired as a Clinical Nurse at the 

Hospital in March 2006, in a department of the Hospital 

known as “4 East.” In March 2007, Nurse Angela 

Hollandsworth assumed the position of Clinical Manager for 

4 East, and became Nurse Wheeler’s immediate supervisor. 

As the Clinical Manager of 4 East, Nurse Hollandsworth had 

responsibilities for the hiring, supervision, and, when 

necessary, termination, of all of the Registered Nurses in her 

unit. The Clinical Director of the unit was Sue Howell. 

On December 27, 2009, Nurse Wheeler was floated to the 

Hospital’s Intensive Care Unit (ICU). She was assigned to 

care for three patients during a twelve-hour shift that began at 

7:00 a.m. The following day, four nurses who had been 

working with Nurse Wheeler during that December 27 shift 

reported to Nurse Hollandsworth that Nurse Wheeler had 

made a number of mistakes, including (1) a report that Nurse 

Wheeler had left a patient’s IV bag empty, that the IV was set 

up to deliver the wrong medications, and that the patient had 

not been given two prescribed doses of insulin; (2) a report 

that Nurse Wheeler had failed to properly record patient vital 

signs for at least two of her patients, had failed to provide a 

temperature probe monitor to a patient, and had failed to 

properly set a blood pressure cuff on a patient; (3) a report 

that one of Nurse Wheeler’s patients, who was unable to 

make intentional movements or reposition herself without 
3

assistance, was left slouched over in bed with her head rested 

uncomfortably against the side rail, resulting in the patient 

being soaked through to her gown and sheets in her own oral 

secretions, that Nurse Wheeler did not check in on the patient 

during the five hours the patient’s family was in the room, and

that later the patient was once again found slumped against 

the rail and also caked in dry stool; and (4) a report that 

another of Nurse Wheeler’s patients had been discovered 

lying in dried stool, also with an empty antibiotic bag hooked 

up to the running heparin drip. 

On December 30, 2009, following the reporting of these 

alleged incidents, Nurse Hollandsworth and Director Howell

spoke with Nurse Wheeler via speaker phone to notify her 

that she was being suspended and to advise her that she was to 

report to the Hospital later that day in order to review the 

issues under investigation. During Nurse Wheeler’s 

suspension, Nurse Hollandsworth conducted an investigation 

into the allegations. Nurse Hollandsworth interviewed each 

of the nurses who had reported on Nurse Wheeler’s conduct, 

and confirmed in writing what each had told her they 

observed. Nurse Hollandsworth also requested that Nurse 

Wheeler provide a written explanation of the incidents, which 

Wheeler provided in two emails to Michelle Lawyer in the 

Hospital’s Human Resources department on January 1 and 6, 

2010. Ms. Lawyer forwarded Nurse Wheeler’s emails to 

Nurse Hollandsworth and Director Howell on January 4 and 

7, 2010, respectively. 

On January 8, 2010, Nurse Wheeler met with Nurse 

Hollandsworth and Director Howell, and was notified at that 

time that the decision had been made to terminate her 

employment. According to the termination letter, Nurse 

Wheeler’s termination was based on the findings of the 

investigation into the allegations of poor work performance 
4

during her December 27, 2009 shift, which concluded that her 

actions on that day “reflected a serious lack of clinical 

judgment and jeopardized the health and safety of [the 

Hospital’s] patients.” J.A. 109. The Hospital did not hire a 

nurse to replace Wheeler. 

Nurse Wheeler filed a complaint with the Equal 

Employment Opportunity Commission (EEOC) on January 7, 

2010. She then filed a formal Charge of Discrimination with 

the EEOC and the District of Columbia Office of Human 

Rights (OHR) on January 21, 2010. On or about September 

22, 2010, the EEOC issued Nurse Wheeler a Notice of Right 

to Sue. 

Nurse Wheeler filed a complaint with the District of 

Columbia Superior Court on July 26, 2010. The action was 

removed to the District Court for the District of Columbia on 

August 25, 2010. The complaint alleged, inter alia, that the 

Hospital discriminated against Nurse Wheeler based on her 

race in violation of Title VII of the 1964 Civil Rights Act. 

The Hospital filed a motion to dismiss on August 31, 2010, 

seeking dismissal of all counts. The District Court granted 

the motion in part on June 6, 2011. See Wheeler v. 

Georgetown Univ. Hosp. (Wheeler I), 788 F. Supp. 2d 1 

(D.D.C. 2011). The Hospital moved for summary judgment 

on January 31, 2014. The District Court granted the 

Hospital’s motion for summary judgment on June 27, 2014. 

Wheeler v. Georgetown Univ. Hosp. (Wheeler II), 52 F. Supp. 

3d 40 (D.D.C. 2014).

II.

We review the District Court’s grant of summary 

judgment de novo. Holcomb v. Powell, 433 F.3d 889, 895 

(D.C. Cir. 2006). Summary judgment is appropriately granted 

when, viewing the evidence in the light most favorable to the 
5

non-movant and drawing all reasonable inferences 

accordingly, no reasonable jury could reach a verdict in her 

favor. Carter v. George Washington Univ., 387 F.3d 872, 878 

(D.C. Cir. 2004). The evidence presented must show that (1) 

there is no genuine issue as to any material fact, and (2) the 

moving party is entitled to judgment as a matter of law. 

Holcomb, 433 F.3d at 895; FED. R. CIV. P. 56(c). “[T]he mere 

existence of some alleged factual dispute between the parties

will not defeat an otherwise properly supported motion for 

summary judgment; the requirement is that there be no 

genuine issue of material fact.” Anderson v. Liberty Lobby, 

Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original). 

“Only disputes over facts that might affect the outcome of the 

suit under the governing law will properly preclude the entry 

of summary judgment. Factual disputes that are irrelevant or 

unnecessary will not be counted.” Id. at 248.

In conducting our analysis, we review the record taken as 

a whole. Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

475 U.S. 574, 587 (1986). “Where the record taken as a 

whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.” Id.

(quotation marks omitted). We are not to make credibility 

determinations or weigh the evidence. Holcomb, 433 F.3d at 

895; see Liberty Lobby, 477 U.S. at 249 (“[A]t the summary 

judgment stage the judge’s function is not himself to weigh 

the evidence and determine the truth of the matter but to 

determine whether there is a genuine issue for trial.”). 

Title VII of the Civil Rights Act makes it unlawful for an 

employer “to fail or refuse to hire or to discharge any 

individual, or otherwise to discriminate against any individual 

with respect to his compensation, terms, conditions, or 

privileges of employment, because of such individual’s race, 

color, religion, sex, or national origin.” 42 U.S.C. § 2000e-
6

2(a)(1). Where the plaintiff lacks direct evidence of 

discrimination, racial discrimination claims under Title VII 

are subject to the familiar burden-shifting framework of 

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). 

See, e.g., Chappell-Johnson v. Powell, 440 F.3d 484, 487 

(D.C. Cir. 2006). First, the plaintiff carries the burden of 

establishing a prima facie case of racial discrimination. Id. 

“To state a prima facie case of discrimination, a plaintiff must 

allege she is part of a protected class under Title VII, she 

suffered a cognizable adverse employment action, and the 

action gives rise to an inference of discrimination.” Walker v. 

Johnson, 798 F.3d 1085, 1091 (D.C. Cir. 2015). Once the 

prima facie case is established, the burden then shifts to the 

employer to articulate a legitimate, nondiscriminatory reason 

for its action. Id. at 1092. If the employer does this, the 

burden then shifts back to the plaintiff, who must be afforded 

a fair opportunity to show that the employer’s stated reason 

for its actions was in fact pretext for unlawful discrimination. 

Id. 

In reviewing a summary judgment motion where the 

defendant has proffered some legitimate reason for its adverse 

employment action, however, we skip ahead to the third step 

in the test. “[O]nce the employer asserts a legitimate, nondiscriminatory reason, the question whether the employee 

actually made out a prima facie case is no longer relevant and 

thus disappears and drops out of the picture.” Brady v. Office 

of Sergeant at Arms, 520 F.3d 490, 493 (D.C. Cir. 2008) 

(quotation marks and alteration omitted). “[T]he district court 

need not – and should not – decide whether the plaintiff 

actually made out a prima facie case under McDonnell 

Douglas.” Id. at 494 (emphasis in original); see also Jones v. 

Bernanke, 557 F.3d 670, 678 (D.C. Cir. 2009) (“[A]sking 

whether [the plaintiff] satisfied his prima facie burden is an 

unnecessary and improper ‘sideshow.’” (quoting Brady, 520 
7

F.3d at 494)). The only question that remains is whether the 

evidence creates a material dispute on the ultimate issue. 

Jones, 557 F.3d at 678. As we have stated: 

[I]f an employer asserts a legitimate, 

nondiscriminatory reason for an adverse 

employment action, the district court must 

conduct one central inquiry in considering an 

employer’s motion for summary judgment or 

judgment as a matter of law: whether the 

plaintiff 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 against the plaintiff 

on a prohibited basis.

Adeyemi v. District of Columbia, 525 F.3d 1222, 1226 (D.C. 

Cir. 2008). Thus, the only relevant inquiry here is whether 

Nurse Wheeler produced sufficient evidence for a reasonable 

jury to conclude that the Hospital’s asserted nondiscriminatory reason for firing her was not the actual reason, 

and that instead the Hospital was intentionally discriminating 

against Nurse Wheeler on account of her race. 

In considering this question, we ask “whether the jury 

could infer 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 . . . or any contrary evidence 

that may be available to the employer.” Aka v. Washington 

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

This Court does not sit as a “super-personnel department” that 

reexamines an employer’s business decisions, Barbour v. 
8

Browner, 181 F.3d 1342, 1346 (D.C. Cir. 1999), and “may 

not second-guess an employer’s personnel decision absent 

demonstrably discriminatory motive,” Fischbach v. D.C. 

Dep’t of Corr., 86 F.3d 1180, 1183 (D.C. Cir. 1996)

(quotation marks omitted). “The ultimate burden of 

persuading the trier of fact that the defendant intentionally 

discriminated against the plaintiff remains at all times with 

the plaintiff.” Texas Dep’t of Cmty. Affairs v. Burdine, 450 

U.S. 248, 253 (1981). 

III.

Nurse Wheeler argues, contrary to the District Court’s 

determination, that there were sufficient facts and evidence 

presented from which a reasonable juror could have 

concluded that the reasons proffered by the Hospital for her 

termination were pretextual, and that the termination was 

actually the result of racial discrimination. A plaintiff may 

support an inference that her employer’s stated reasons for 

undertaking the adverse employment action in question were 

pretextual by citing a number of possible sources of evidence, 

including “the employer’s better treatment of similarly 

situated employees outside the plaintiff’s protected group, its 

inconsistent or dishonest explanations, its deviation from 

established procedures or criteria, [] the employer’s pattern of 

poor treatment of other employees in the same protected 

group as the plaintiff, or other relevant evidence that a jury 

could reasonably conclude evinces an illicit motive.” Walker, 

798 F.3d at 1092; see also Royall v. Nat’l Ass’n of Letter 

Carriers, AFL–CIO, 548 F.3d 137, 144 (D.C. Cir. 2008) (“A 

plaintiff, who retains the burden of persuasion throughout, 

may show pretext in a number of ways, including by offering 

evidence of more favorable treatment of similarly situated 

persons who are not members of the protected class or that the 

employer is lying about the proffered justification.” (citation 
9

omitted)). By providing evidence that similarly situated nonblack nurses were treated more favorably, Nurse Wheeler has 

raised a genuine issue of material fact regarding her 

termination, which ought to be resolved by a jury. 

A.

Nurse Wheeler seeks to discredit the Hospital’s 

justification for her termination by showing that nurses of 

other races – primarily white nurses – were not disciplined as 

severely for similar conduct. “One way to discredit an 

employer’s justification is to show that similarly situated 

employees of a different race received more favorable

treatment.” Royall, 548 F.3d at 145; see also 1 LEX K.

LARSON, EMPLOYMENT DISCRIMINATION § 8.04, at 8-66 (2d 

ed. 2007) (“Probably the most commonly employed method 

of demonstrating that an employer’s explanation is pretextual 

is to show that similarly situated persons of a different race or 

sex received more favorable treatment.”). Showing that 

others outside the plaintiff’s class have been more favorably 

treated is “[e]specially relevant” to a demonstration of pretext. 

McDonnell Douglas, 411 U.S. at 804. The question of 

whether employees are similarly situated in order to show 

pretext “ordinarily presents a question of fact for the jury.” 

George v. Leavitt, 407 F.3d 405, 414 (D.C. Cir. 2005). 

Nurse Wheeler identifies six nurses whom she believes 

were similarly situated but treated more favorably: W.L., 

K.M., C.S., A.A., B.D., and C.R. Nurse Wheeler has asserted 

that during the time she was under the supervision of Nurse 

Hollandsworth and Director Howell, these similarly-situated 

nurses were not similarly terminated for their “gross 

misconduct,” which Wheeler contends included calculating 

and administering the wrong dosage of heparin (W.L., B.D.,

and C.R.), failing to document a patient’s changed mental 
10

status and delaying the provision of treatment (K.M.), 

withholding prescribed medication in contradiction to the 

doctor’s orders (C.S.), and failing to provide a patient with a 

needed bite block (A.A.). None of these nurses was

terminated. 

For a plaintiff to prove that she is similarly situated to 

another employee, she must demonstrate that she and the 

alleged similarly-situated employee “were charged with 

offenses of comparable seriousness,” and “that all of the 

relevant aspects of [her] employment situation were nearly 

identical to those of the other employee.” Burley v. Nat’l 

Passenger Rail Corp., 801 F.3d 290, 301 (D.C. Cir. 2015)

(quotation marks and alteration omitted) (citing Holbrook v. 

Reno, 196 F.3d 255, 261 (D.C. Cir. 1999)). “Factors that bear 

on whether someone is an appropriate comparator include the 

similarity of the plaintiff’s and the putative comparator’s job 

and job duties, whether they were disciplined by the same 

supervisor, and, in cases involving discipline, the similarity of 

their offenses.” Id. Viewing the evidence in the light most 

favorable to Nurse Wheeler, Carter, 387 F.3d at 878, and 

recognizing that determining whether two employees are 

similarly situated is ordinarily a question of fact for the jury, 

George, 407 F.3d at 414, we believe there is sufficient 

evidence from which a jury could reasonably conclude, 

bearing in mind the Burley factors, that one or more of the 

proposed comparator nurses were similarly situated to 

Wheeler in all relevant respects. 

1.

First, all of the nurses identified by Nurse Wheeler were 

Registered Nurses working in the same or a comparable unit. 

Nurse Wheeler described these nurses as her colleagues, and 

the Hospital has not countered with any evidence to indicate 
11

that, actually, the nurses should be differentiated in terms of 

their roles and responsibilities – either because they were 

above or below Nurse Wheeler’s pay grade or for any other 

reason. Cf. Neuren v. Adduci, Mastriani, Meeks & Schill, 43 

F.3d 1507, 1514 (D.C. Cir. 1995) (male law associate was not 

similarly situated to female associate in sex discrimination 

case based in part on the fact that it was undisputed that the 

male associate was lower in seniority). With these facts, a 

jury could reasonably conclude that the other nurses were in 

similar roles and had similar responsibilities. 

2.

Second, all of the proposed comparator nurses were 

subject to the same decision makers as Nurse Wheeler: the 

named nurses were either subject to discipline by both Nurse 

Hollandsworth and Director Howell, or they were supervised 

by a different clinical manager who also reported to Director 

Howell. And all were subject to the decisional authority of 

the GUH Human Resources department. 

It is undisputed that Nurse Hollandsworth played a key 

role in the decision to terminate Wheeler, but she was not the

lone decision maker. In responding to Nurse Wheeler’s 

interrogatory request to “[i]dentify the person who made the 

decision to terminate” her employment, the Hospital stated

that “[t]he determination to terminate [Nurse Wheeler’s] 

employment was recommended by her Clinical Manager, 

Angela Hollandsworth, and supported by Sue Howell and 

GUH Human Resources.” J.A. 382. The Hospital also 

asserted in its interrogatory responses that “GUH Human 

Resources determined that Plaintiff should be terminated” 

based on Hollandsworth’s investigation. J.A. 381 (emphasis 

added). And despite the Hospital’s assertion that “Plaintiff 

was not fired by Susan Howell,” J.A. 383, other evidence 
12

indicates that Director Howell was integrally involved in 

Nurse Wheeler’s disciplinary process and was therefore a 

relevant decision maker. Where the Hospital clearly 

identified Director Howell and GUH Human Resources – in 

addition to Nurse Hollandsworth – as “person[s] who made 

the decision to terminate” Nurse Wheeler, J.A. 382, a 

reasonable juror could conclude that disciplinary decisionmaking was a shared responsibility between Nurse 

Hollandsworth, the direct supervisor, Howell, the clinical 

director, and GUH Human Resources. Accordingly, there is 

at least a dispute of fact as to whether other nurses also 

subject to supervision and discipline by Hollandsworth, 

Howell, as clinical director, or GUH Human Resources 

should be viewed as similarly situated to Wheeler in this 

respect. 

Based on the record evidence, a juror could reasonably 

conclude that either Nurse Hollandsworth or Director Howell, 

or both, played a role in the decision not to terminate three out 

of the four of Nurse Wheeler’s proposed comparators who 

were also supervised by Nurse Hollandsworth – C.S., K.M., 

and W.L. – and that the harsher treatment of Wheeler was 

based on race.1

 Nurse Hollandsworth was well aware, for 

 1 With respect to A.A., however, we find this factor eliminates her 

as a comparator because the record evidence does not support a 

finding that her alleged misconduct was relayed to Nurse 

Hollandsworth, Director Howell, or Human Resources. While A.A. 

worked directly for Nurse Hollandsworth, the evidence provided by 

Nurse Wheeler suggests only that an “ICU manager” was informed 

of the incident. J.A. 254. Nurse Wheeler admitted that she “didn’t 

talk to anyone about going to HR” to report the incident, J.A. 256, 

and Nurse Hollandsworth denied any knowledge of the event in her 

deposition, J.A. 343-44. For this reason, there is insufficient 

evidence for a juror to reasonably conclude that Hollandsworth, 
13

example, that C.S. erroneously discontinued sickle cell 

anemia medication contrary to the doctor’s order that it be 

administered, but after reviewing the incident report, Nurse 

Hollandsworth chose merely to counsel C.S. rather than 

terminate her or recommend her termination. And although 

Nurse Hollandsworth denied awareness of K.M.’s misconduct 

in failing to attend to a patient who “coded,” Wheeler’s own 

testimony that, when it happened, she told Nurse 

Hollandsworth about that incident suffices to create a material 

factual dispute that Nurse Hollandsworth had a role in the nodiscipline response to K.M.’s misconduct. Another of Nurse 

Hollandsworth’s direct reports, W.L., similarly received no 

discipline after she gave a patient an incorrect dose of the 

anti-coagulant heparin, requiring the patient’s intubation and

transfer to the ICU. And though Nurse Hollandsworth was 

not involved in the investigation into W.L.’s misconduct, the 

record evidence suggests that Director Howell or some other 

common manager was. 

The record also shows that two other proposed 

comparators, B.D. and C.R., shared a decision maker in 

common with Nurse Wheeler in Director Howell, though they 

worked in a different unit and under a different clinical 

manager. As discussed above, Sue Howell was the director of 

the unit in which Nurse Wheeler worked, and in conjunction 

with Michelle Lawyer of GUH Human Resources was 

integrally involved in the decision to terminate Wheeler. 

According to the record evidence, Director Howell and Nurse 

Hollandsworth jointly called Nurse Wheeler on December 29 

to inform her of her suspension; Howell and Hollandsworth 

both received Nurse Wheeler’s emails to Ms. Lawyer 

providing Nurse Wheeler’s statements as to the incidents 

 

Howell, or Human Resources were involved in the decision to 

discipline A.A., and thus A.A. is not an apt comparator.
14

under investigation; and Howell and Hollandsworth both met 

with Nurse Wheeler in person on January 8 to notify her of 

the decision to terminate her employment. Given Director 

Howell’s close involvement in Nurse Wheeler’s case, a jury 

could reasonably infer that Howell, as director of the clinical 

unit where B.D. and C.R. worked, similarly participated in the 

decision to suspend B.D. and C.R., along with their direct 

supervisor. The evidence thus suffices to create a triable issue 

whether Director Howell engaged in racially disparate 

treatment of Nurse Wheeler by suspending, rather than 

terminating, similarly situated white nurses.

In sum, there remains a genuine issue of material 

dispute, based on the facts presented, and viewing the 

evidence in the light most favorable to Nurse Wheeler, that 

other nurses were subject to the same decision makers to a 

sufficient extent to allow a meaningful comparison as to how 

these nurses were ultimately treated by the Hospital. See 

Louzon v. Ford Motor Co., 718 F.3d 556, 563-64 (6th Cir. 

2013) (noting that the “same supervisor” criterion had never 

been read as an inflexible requirement, but “[r]ather, a court 

should make an independent determination as to the relevancy 

of a particular aspect of the plaintiff’s employment status and 

that of the non-protected employee” (internal quotation marks 

omitted)). 

3.

Finally, Nurse Wheeler has raised a genuine issue as to 

whether the alleged misdeeds of the proposed comparators 

were of comparable seriousness to her own alleged 

misconduct. In order to be considered similarly situated, it is 

not necessary that the comparators engaged in the exact same 

offense; what is required is merely that the offenses are of 

“comparable seriousness.” McDonnell Douglass, 411 U.S. at 

804; see also Holbrook, 196 F.3d at 261 (proof that another 
15

employee is similarly situated requires demonstration that the 

two employees “were charged with offenses of ‘comparable 

seriousness’” (quoting Lynn v. Deaconess Med. Ctr.-West 

Campus, 160 F.3d 484, 488 (8th Cir. 1998), abrogated on 

other grounds by Torgerson v. City of Rochester, 643 F.3d 

1031, 1043 (8th Cir. 2011))). In Lynn, the Eighth Circuit 

explicitly rejected the notion that comparator analysis requires 

the compared employees to have engaged in the exact same 

offense. 160 F.3d at 488. “To require that employees always 

have to engage in the exact same offense as a prerequisite for 

finding them similarly situated would result in a scenario 

where evidence of favorable treatment of an employee who 

has committed a different but more serious, perhaps even 

criminal offense, could never be relevant to prove 

discrimination. Common sense as well as our case law dictate 

that we reject such an approach.” Id. 

A jury could reasonably conclude that the alleged 

offenses of Nurse Wheeler’s proposed comparators were 

offenses of “comparable seriousness.” As the Hospital’s 

corporate representative Regina Bryan testified, one category 

of misconduct which could lead to termination by the 

Hospital without prior discipline is “gross misconduct,”

including “severe work performance problems.” J.A. 411. 

Ms. Bryan cited, inter alia, negligence in the care of a patient

and negligent medicine administration as being potentially 

considered “gross misconduct,” which could lead to

termination. Where, according to her termination letter, 

Nurse Wheeler was terminated for “poor work performance 

and failure to follow hospital policy and procedure,” J.A. 109, 

it would be reasonable to view the basis for her termination as 

falling under the “gross misconduct” classification. Likewise, 

in accordance with Ms. Bryan’s testimony, it would be 

reasonable to view the actions of the proposed comparators as 

potentially rising to the level of “gross misconduct” where 
16

those alleged incidents could be characterized as negligence 

in the care of a patient or negligent medicine administration. 

Indeed, when asked whether some of the comparators’ alleged 

mistakes would be considered “gross misconduct,” Ms. Bryan 

testified that those circumstances could potentially be 

characterized as such.2 And, as stated above, there does not 

have to be a history of prior failures in order for one major 

failure to be considered “gross misconduct.” Thus, a jury 

could reasonably determine that Nurse Wheeler’s misconduct

was categorically similar to the misconduct of the proposed 

comparator nurses.

The Hospital here attempts to distinguish Nurse Wheeler

from her proposed comparators on account of her prior 

history of performance issues, stating that because of these 

issues the other nurses could not be found to be similarly 

situated. To begin with, however, there was evidence that

K.M. and C.S. did have prior performance issues that had led 

to either counseling or official discipline, according to the 

testimony of Nurse Hollandsworth. Moreover, Nurse’s 

Wheeler’s termination letter and the Hospital’s interrogatory 

responses identified only the events of December 27 as the 

basis for her dismissal. The Hospital first pointed to Nurse 

Wheeler’s past performance issues to explain her termination 

in October 2013, when Nurse Hollandsworth testified on 

behalf of the Hospital that “[f]or Ms. Wheeler, what led 

ultimately to her termination was a repeated pattern of poor 

work performance.” J.A. 287. To the extent that the Hospital 

relies after-the-fact on Nurse Wheeler’s prior work 

performance as a basis for her termination, that only bolsters 

her argument that her termination was in fact based upon 

 2 The Hospital’s response to Nurse Wheeler’s reliance on Ms. 

Bryan’s testimony in this regard is to suggest that their Rule 

30(b)(6) witness should not be credited. This is not an appropriate 

response at the summary judgment stage. 
17

pretext, as it suggests that the explanation has shifted over 

time. See Geleta v. Gray, 645 F.3d 408, 413 (D.C. Cir. 2011) 

(when an employer’s justification for terminating an 

employee varies over time, “[s]uch shifting and inconsistent 

justifications are probative of pretext” (quotation marks 

omitted)). To the extent the Hospital is not relying on her 

past performance as a basis for termination, however, the 

Hospital cannot try to turn around and use past performance 

issues as a basis upon which to distinguish Nurse Wheeler 

from similarly situated nurses who were not terminated for 

their missteps. The Hospital simply cannot have it both ways. 

Our decision is bolstered by the identification by the 

Hospital in its interrogatory responses of all of the nurses who 

had been disciplined by Nurse Hollandsworth in the past five 

years. None of the nurses identified by Nurse Wheeler as 

having made similar mistakes was on that list. But what is 

even more striking is that, according to Nurse Wheeler’s 

deposition testimony, none of the nurses on that list is white. 

Thus, a jury could reasonably find that Nurse Hollandsworth 

had a history of only disciplining non-white nurses, and the 

Hospital did not terminate any of the white nurses who 

allegedly committed the same class of infraction as Wheeler.

In view of all the evidence, we cannot say that no rational 

and reasonable jury could find these nurses to be comparable

to Nurse Wheeler. See Lynn, 160 F.3d at 488. A jury could 

reasonably compare other nurses, who each made a mistake 

that might rise to the level of “gross misconduct,” with Nurse 

Wheeler. To be clear, the Hospital has not presented evidence 

that conclusively undermines the veracity of Nurse Wheeler’s 

descriptions of the misconduct of the proposed comparators. 

Nor has it presented undisputed evidence that Director Howell 

and GUH Human Resources did not play a role in the 

discipline (or lack thereof) of each of the proposed 
18

comparators. As Rule 56 instructs, a movant may assert that a 

fact cannot be genuinely disputed by “showing that the 

materials cited do not establish the . . . presence of a genuine 

dispute, or that an adverse party cannot produce admissible 

evidence to support the fact.” FED. R. CIV. P. 56(c)(1)(B). In 

the face of the evidence presented by Nurse Wheeler, raising

genuine issues of material fact, the Hospital has failed to 

show that the evidence does not establish a genuine dispute. 

As such, summary judgment is not warranted.

IV.

For the foregoing reasons, the Hospital’s motion for 

summary judgment should have been denied. We reverse the 

judgment of the District Court and remand for further 

proceedings.

So ordered.