UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


BARBOUR, JOYCE A.

v.

BROWNER, CAROL M.


98-5408a

D.C. Cir. 1999


*	*	*


Ginsburg, Circuit Judge: Joyce Barbour sued the Environ- mental
Protection Agency under Title VII of the Civil Rights  Act of 1964, 42
U.S.C. s 2000e-2(a)(1), claiming that the  agency had refused to
promote her because of her race  (black) and had failed to prevent an
agency contractor from  harassing her. A jury found for her on both
counts, and the  district court entered judgment accordingly. The EPA
now  appeals, arguing that because neither of Barbour's claims was 
supported by sufficient evidence, the district court erred by  denying
the agency's motion for judgment as a matter of law.  We agree and


I. Background


Barbour began working for the EPA's Toxic Substances  Control Act
"security staff" in 1990. She says that her  supervisor, Doug Sellers,
told her when she started that he  would promote her from GS-12 to
GS-13 after a year if she  performed well. Accordingly, when she was
rated "exceeds  expectations" after her first annual review, she
thought Sell- ers would promote her immediately. Her job, however, is
not  one that ordinarily allows promotion above GS-12, so Sellers 
told her that she would have to demonstrate, by means of a  "desk
audit," that she had responsibilities beyond those com- mensurate with
her GS-12 level. If the audit revealed that  she was performing GS-13
level tasks, Sellers assured her, a  promotion would follow. Claiming
an audit unnecessary,  Barbour refused. She ultimately received the
promotion  without having an audit, but not until 1996.


Barbour contrasts her experience with that of Janette  Peterson, a
white member of the security staff who received a  promotion to GS-13
after two years as a GS-12. Barbour  concedes, however, that
Peterson's promotion followed a desk  audit. Moreover, although
Peterson's job duties overlapped  to some degree with Barbour's, there
is undisputed evidence  that Peterson had management responsibilities
that Barbour  did not have. Barbour disputes the importance of these 
differences, pointing out that the EPA occasionally waives the  desk
audit requirement and that the additional duties Peter- son had were
of a sort usually assigned to a GS-14, not to a  GS-13, employee.


Barbour's harassment claim arises out of her supervision of  work
performed by Computer Based Systems, Inc. (CBSI), a  contractor that
performed data management services for the  EPA. Despite her position
of authority, Barbour says, CBSI  employees consistently treated her
with disrespect. One  CBSI supervisor directed a subordinate to drag
his heels on a  request Barbour had made. Another turned her back on 
Barbour during a contentious meeting. Still others would call  Sellers
or Peterson to verify the accuracy of the instructions  Barbour had
given them. When Barbour complained to  Sellers about CBSI's conduct,
his response was half-hearted.  When white EPA employees, who had
fewer problems with  CBSI, complained to Sellers, his intervention was
more effec- tive.


Barbour filed this suit in 1994. In March, 1997 the parties  tried the
case to a jury, which returned a verdict in Barbour's  favor on both
her failure to promote and her harassment  claims. The EPA appealed
after the trial court denied its  motion for judgment as a matter of
law.


II. Analysis


We review de novo a district court's disposition of a motion  for
judgment as a matter of law, in the sense that we apply to  the jury's
decision the same forgiving standard as did the  district court: The
jury's resolution of a factual dispute will  stand if it is reasonably
supported by the evidence. See, e.g., 


Barbour v. Merrill, 48 F.3d 1270, 1276 (D.C. Cir. 1995). As  to
so-called "mixed questions of law and fact," which require  the
application of a broad legal standard to particular facts,  see
Pullman-Standard v. Swint, 456 U.S. 273, 289 n.19  (1982), there is no
obvious way to decide whether determina- tions made at the trial level
should be reviewed deferentially  or independently. See Miller v.
Fenton, 474 U.S. 104, 114  (1985) (standard of review "turn[s] on a
determination that, as  a matter of the sound administration of
justice, one judicial  actor is better positioned than another to
decide the issue in  question"). Therefore, the reviewing court must
make a  reasoned judgment whether the risk of an erroneous trial 
level decision, or the need to clarify the governing law, or any 
other value secured by review de novo, is warranted in view  of the
added costs of such review. See, e.g., Ornelas v.  United States, 517
U.S. 690, 697 (1996) ("Independent review  [of probable cause
determinations] is ... necessary if appel- late courts are to maintain
control of, and to clarify, the  [governing] legal principles"); Bose
Corp. v. Consumers Un- ion of United States, Inc., 466 U.S. 485, 505
(1984) (appellate  courts independently review jury determinations
that speech  is unprotected by the First Amendment "both to be sure
that  the speech in question actually falls within the unprotected 
category and to confine the perimeters of any unprotected  category
within acceptably narrow limits"). We touch upon  this issue because,
as will be seen, the present appeal re- quires us to review jury
findings on two mixed questions of  law and fact, and we have not


A. Failure to Promote


The first question is whether "all of the relevant aspects of 
[Barbour's] employment situation were nearly identical" to  those of
Janette Peterson, and therefore whether Peterson's  more rapid
promotion could be said to indicate racial bias on  the part of the
EPA. Mungin v. Katten Muchin & Zavis,  116 F.3d 1549, 1554 (D.C. Cir.
1997). We think the jury's  implicit finding in favor of Barbour on
this issue should be  reviewed deferentially, although it necessarily
entails a judg- ment about which aspects of her employment situation


"relevant." The issue does not seem to be of general impor- tance,
peculiarly in need of clarification, or otherwise deserv- ing of
specially probing review. Nor, contrary to the EPA's  representations,
does either our decision in Mungin or our  decision in Neuren v.
Adduci, Mastriani, Meeks & Schill, 43  F.3d 1507 (D.C. Cir. 1995),
contain any indication that we  should review this question de novo.
Like the mine run of  mixed questions, therefore, it should be
resolved in the first  instance by a jury, whose decision should be
disturbed on  appeal only if it could not reasonably be based upon the
 evidence properly received. See United States v. Gaudin,  515 U.S.


In this case, however, we agree with the Government that  no fair
comparison can be drawn between Barbour and  Peterson; hence, the
jury's verdict cannot stand. As the  EPA points out, Barbour was
responsible for only seven  "specific task management activities," all
of which dealt with  "things which were in place and functioning."
Peterson's  duties were both more numerous and more weighty; they 
included some related to the development and implementation  of new
policies. Furthermore, Peterson, unlike Barbour,  agreed to a desk
audit in order to document that she per- formed the duties of a GS-13


Barbour does not deny these differences; rather, she main- tains that
they do not relate to any "relevant aspect[ ]" of her  employment
situation. First, she contends, the additional  duties Peterson
performed were usually assigned to a GS-14  position; consequently, a
rational juror could find those  duties irrelevant to the EPA's
decision to promote her, and  not Barbour, to GS-13. In other words, a
rational juror, we  are told, could determine that in deciding not to
promote  Barbour the EPA did not rely upon Peterson's performance  of
higher level responsibilities. This flies in the face of  reason. That
Peterson was capable of handling more impor- tant GS-14 level tasks is
plainly relevant to whether she  would acquit herself adequately in a
GS-13 level position--or  so an employer is entitled to believe.*
Title VII, it bears 




__________

n * There is not a scintilla of evidence in the record to suggest that 
the EPA--as opposed to Barbour--regarded the difference as 


repeating, does not authorize a federal court to become "a 
super-personnel department that reexamines an entity's busi- ness
decisions." Dale v. Chicago Tribune Co., 797 F.2d 458,  464 (7th Cir.
1986). This is precisely the role the court would  play, however, were
the jury to ignore Peterson's GS-14 level  job duties on the basis of
the argument Barbour advances.


Barbour next argues that her limited job duties could not  have been
material to the EPA's decision because, without  having assumed any
new ones, she received the promotion in  1996. In effect, she attempts
to undercut the agency's expla- nation of its decision by means of
another comparison--not,  this time, between herself and Peterson, but
between her  younger and her older selves. This approach is creative,
but  it is at odds with Sellers' undisputed testimony that she 
received the promotion because her performance improved  between 1991
and 1996. When she first requested the pro- motion, she had been with
the security staff for only one year.  When the promotion finally
came, she had been on the job for  six. It is not unusual, of course,
that an increase in produc- tivity would accompany a five-fold
increase in experience.**




__________

n irrelevant. Our dissenting colleague contends that a rational juror 
could find Peterson's additional job duties immaterial because Sell-
ers did not condition his promise to promote Barbour upon her 
performance of such duties. [Dissent at 8]. This theory was not 
advanced by Barbour herself, and hence is not properly before us.  In
any event, it is unpersuasive. Whether Sellers kept his word to 
Barbour is irrelevant as this is not a contract case. The only 
relevant question is whether a jury could reasonably conclude that 
the agency's failure to promote Barbour was the product of racial 
discrimination, which Barbour tries to prove by comparing her 
treatment to that accorded Peterson.


** Our dissenting colleague contends that Seller's reason for 
promoting Barbour in 1996--her performance had improved--belies  his
explanation for not promoting her in 1991, namely, her job  duties
were too narrow. The EPA can hardly be faulted for having  failed to
reconcile Sellers' statements, however, because Barbour  does not
argue there is any conflict between them. Nor are the  statements
inconsistent: At some point, an employee's increase in 


Finally, Barbour suggests that because the EPA has in the  past
sometimes waived the desk audit requirement, a rational  juror could
have doubted the bona fides of the agency's  refusal to promote her
without one in 1991. We wonder; the  record contains evidence of only
one instance in the early  1990's in which the agency waived the rule.
Assuming for the  sake of the argument, though, that the jury could
have found  the agency to have overstated the importance of a desk
audit,  that would little avail Barbour.


While we usually afford "considerable ... significance" to  evidence
showing that an employer's explanation of a chal- lenged decision may
be pretextual, Aka v. Washington Hosp.  Ctr., 156 F.3d 1284, 1292
(1998), two circumstances make this  case unusual. First, Barbour
calls into doubt only part of the  EPA's proffered explanation for its
refusal to promote her,  for the agency's assertion that it promoted
Peterson more  rapidly because she performed more advanced job duties
is  not in doubt. This case therefore stands in clear contrast to 
Aka, which was premised upon evidence in the record from  which a
reasonable juror could find that, absent invidious  discrimination,
the challenged employment decision was inex- plicable. See id. at 1292
("Events have causes; if the only  explanations set forth in the
record have been rebutted, the  jury is permitted to search for
others, and may in appropriate  circumstances draw an inference of
discrimination"). If  Barbour had produced evidence suggesting the
EPA's state- ments regarding the importance of a desk audit are not 
merely incorrect, but intentionally deceitful, then this difficul- ty
could perhaps be overcome. See id. at 1289 n.3 (term  "pretext ...
sometimes ... means that an employer's expla- nation is incorrect, and
sometimes it means both that the  explanation is incorrect and that
the employer's real reason  was discriminatory"); St. Mary's Honor
Center v. Hicks, 509  U.S. 502, 511 (1993) (evidence of pretext is
particularly indica- tive of bias if it supports a reasonable
"suspicion of mendaci- ty"). Evidence that the EPA invoked the desk




__________

n productivity will come to outweigh the limited scope of her responsi-
bilities.


ment only when employees of an allegedly disfavored race  sought
promotions, for instance, might demonstrate that the  agency was
purposefully using the rule to cover up its dis- criminatory
practices. Here, however, the white employee  was obligated to undergo
a desk audit, while the black  employee was subjected to treatment
that was at first identi- cal, and later preferable. That the agency
applied its rule  more strictly to the white employee than to the
black one  hardly demonstrates that it used the rule to discriminate 
against blacks. See Mungin, 116 F.3d at 1556 (employer's  failure to
follow its procedures, standing alone, does not  reveal intent to


Also removing this case from the purview of the rule in  Aka is
Barbour's inability to adduce any other evidence. In  Aka, we assumed
that, prior and in addition to showing  pretext, the plaintiff will
have presented sufficient evidence to  make out a prima facie case of
discrimination. See Aka, 156  F.3d at 1289 (evidence in Title VII case
consists 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.... We are [here] faced  with the
issue of when evidence in categories (1) and (2) alone  can suffice to
support a jury verdict for the plaintiff"). In  this case, the
assumption proves unwarranted: Barbour's sole  affirmative evidence of
bias is the apples-and-oranges com- parison she draws between herself
and Peterson, which we  rejected above. Of course, the case has been
tried, so the  question whether she established a prima facie case is
now  irrelevant. See United States Postal Serv. Bd. of Governors  v.
Aikens, 460 U.S. 711, 715 (1983). This does not mean,  however, that
in our analysis of "the ultimate question of  discrimination vel non,"
id. at 714, we are obliged to pretend  that there is evidence
supporting a prima facie case when in  fact there is not. In short,
unlike the plaintiff in Aka,  Barbour has nothing to buttress her
evidence of pretext.  Because that evidence standing alone has
virtually no proba- tive value, we conclude that the district court
should have  granted the EPA's motion for judgment as a matter of


B. Harassment


Barbour's claim that the EPA failed adequately to protect  her from
harassment by employees of CBSI requires us to  examine the second
mixed question of law and fact raised by  this case, namely, whether
the behavior of which she com- plains was sufficiently egregious to
violate Title VII. Not all  abusive behavior, even when it is
motivated by discriminatory  animus, is actionable. Rather, a
workplace environment be- comes "hostile" for the purposes of Title
VII only when  offensive conduct "permeate[s] [the workplace] with
discrimi- natory intimidation, ridicule, and insult that is
sufficiently  severe or pervasive to alter the conditions of the
victim's  employment and create an abusive working environment." 
Oncale v. Sundowner Offshore Servs., Inc., 118 S. Ct. 998,  1001


Whether the harassment in a particular case can be consid- ered "severe
or pervasive" is manifestly a mixed question of  law and fact; in
order to answer it, one aligns the established  historical facts along
side the legal rule, and determines  whether the facts satisfy the
statutory standard. See  Pullman-Standard, 456 U.S. at 289 n.19; see
also Jordan v.  Clark, 847 F.2d 1368, 1375 n.7 (9th Cir. 1988). As we
have  seen, though, calling the issue mixed does not resolve the  more
important question: How closely should the appellate  court review the
fact-finder's determination that the harass- ment was severe or
pervasive? Compare id. (de novo review)  with Carr v. Allison Gas
Turbine Division, 32 F.3d 1007,  1009 (7th Cir. 1994) (deferential
review). Nor is it clear  whether de novo or deferential review would
be preferable as  a matter of policy. On the one hand, it is often
difficult under  current law to distinguish "simple teasing, offhand
comments,  and isolated incidents," Faragher v. City of Boca Raton,
118  S. Ct. 2275, 2283 (1998), from the serious, discriminatory 
conduct that violates Title VII. To the extent that de novo  appellate
review could help flesh out the governing standard,  it would provide
a significant benefit to employees and em- ployers alike. On the other
hand, because harassment cases  tend to be intensely fact-specific, a
judicial determination that  particular offensive conduct was or was


sive" will often be of limited value to courts in subsequent  cases.
Any clarification of the law to be had by virtue of de  novo review,
therefore, may not be worth the additional  burden it entails. See
Shira A. Scheindlin & John A. Elofson,  Judges, Juries and Sexual
Harassment, __ Yale L. & Pol'y  Rev. __ (1999).


We need not resolve this issue today, however, because it is  clear
that the EPA is entitled to judgment as a matter of law  regardless of
the standard of review we apply. Barbour  asserts that employees of
CBSI subjected her to a hostile  working environment from 1990 to
1992. To support this  claim, she relies primarily upon two incidents:
the meeting at  which a CBSI employee turned her back on Barbour and 
refused to answer any of her questions, and a CBSI supervi- sor's
intentionally slow response to one of her requests for  information.
These episodes certainly reflect poorly upon the  professionalism of
CBSI's employees. No reasonable juror,  however, could conclude that
they were "sufficiently severe or  pervasive to alter the conditions
of [Barbour's] employment."  See Sprague v. Thorn Americas, Inc., 129
F.3d 1355, 1366  (10th Cir. 1997) (five mild incidents of harassment
over 16  month period did not create hostile working environment); 
Saxton v. American Tel. & Tel. Co., 10 F.3d 526, 534 (7th Cir.  1993)
(same with two incidents over three week period); cf.  Tomka v. Seiler
Corp., 66 F.3d 1295, 1305 (2d Cir. 1995)  (sexual assault sufficiently
severe to create hostile work envi- ronment).


Barbour tries to fill the hole in her case by pointing to  testimony
that CBSI employees were habitually uncoopera- tive and unfriendly.
Much of this consists of conclusory, and  therefore unhelpful,
statements that CBSI employees had  less respect for Barbour than they
had for Peterson. See  Johnson v. City of Fort Wayne, 91 F.3d 922, 938
(7th Cir.  1996) ("[S]pecific allegations of discriminatory or
harassing  conduct directed at [plaintiff]" required to show hostile
work  environment). She does complain specifically that employees  of
CBSI, in an attempt to have the deadlines she imposed  relaxed, would
often ask Sellers to confirm her instructions.  It is hardly
surprising, however, that a contractor would try 


to play off one of its Government overseers against another in  this
way. Barbour's protestation is like to that of a waitress  who
complains that her customers are sometimes rude: treat- ment that
would be objectionable in other contexts is an  inevitable part of the
job. See Oncale, 118 S. Ct. at 1003  (application of severe or
pervasive test "requires careful  consideration of the social context
in which particular behav- ior occurs and is experienced by its
target"). Although  CBSI's gamesmanship, like its other questionable
behavior,  was probably regrettable, it subjected Barbour to little if
 anything more serious than the "ordinary tribulations of the 
workplace." Faragher, 118 S. Ct. at 2284. Consequently, the  district
court should have awarded the EPA judgment as a  matter of law on this


III. Conclusion


For the foregoing reasons, the judgment of the district  court is


Reversed.


Tatel, Circuit Judge, concurring in part and dissenting in  part:


This court's opinion leaves no doubt which way my col- leagues would
have voted on Barbour's failure-to-promote  claim had they been
jurors. Our job as appellate judges,  however, is not to weigh the
evidence ourselves, but simply to  assess its legal sufficiency.
Because I find sufficient evidence  in the record to support the
jury's failure-to-promote verdict,  I cannot join that portion of the
court's opinion. In the end,  however, I too would reverse, but for a
different reason: I  agree with EPA that the district judge made
improper and  prejudicial comments in the jury's presence.


In a sense, the jury's role in this case has now been  usurped twice:
first by the district judge, who jeopardized its  impartiality with
his prejudicial comments, and now by my  colleagues, who have
substituted their judgment for the ju- rors'. Because both sides were
entitled to have this discrimi- nation dispute resolved by the jury,
see 42 U.S.C.  s 1981a(c)(1) (1994), I respectfully dissent.


Failure to Promote


Beginning with the court's discussion of the standard of  review
governing Barbour's failure-to-promote claim, I think  my colleagues'
formulation fails to capture the very limited  scope of our role. It
has long been settled law, as the court  seems to acknowledge, see
Maj. Op. at 5, that the standard of  review governing the jury's
verdict is "whether the evidence  was sufficient for a reasonable jury
to have reached [it]."  Barbour v. Merrill, 48 F.3d 1270, 1276 (D.C.
Cir. 1995); see  also Swanks v. WMATA, No. 98-7115, 1999 WL 397413
(D.C.  Cir. June 18, 1999). Nowhere in its opinion, however, does  the
court acknowledge that sufficiency challenges require us  to view the
evidence "in the light most favorable" to the  prevailing party, and
to give the prevailing party "the advan- tage of every fair and
reasonable inference that the evidence  may justify," Coburn v. Pan
American World Airways, Inc., 


711 F.2d 339, 342 (D.C. Cir. 1983) (internal quotation marks  and
citation omitted). Judgment as a matter of law is  appropriate only
"if the evidence, together with all inferences  that can reasonably be
drawn therefrom, is so one-sided that  reasonable [jurors] could not
disagree on the verdict." Hay- man v. National Academy of Sciences, 23
F.3d 535, 537 (D.C.  Cir. 1994) (internal quotation marks and citation
omitted).  Bearing this highly deferential standard in mind, I turn to
the  record in this case.


In 1990, Douglas Sellers, then section chief of EPA's Public 
Information Section, began recruiting Joyce Barbour, an 
African-American who had worked for EPA for twelve years,  to join his
staff. See Trial Tr. 3/18/97 at 34, 38. Sellers  needed someone to
take over contract oversight duties that  previously had been
performed by Janette Peterson, a white  employee who had worked for
EPA for five years. See Trial  Tr. 3/19/97 at 23-24, 42-45. Peterson
had performed the  contract oversight job for two years, first as a
GS-12 and  then as a GS-13. See id. at 28.


When Barbour took over, she was given a GS-12 grade.  She was also
given a position description that EPA concedes  had nothing to do with
her actual job; rather, it had been  written for a group of employees
performing other tasks in a  different section, and Barbour testified
without contradiction  that she never performed any of the duties
detailed in it. See  Trial Tr. 3/18/97 at 40. An EPA personnel officer
explained  that this position description had not been properly
updated  following a 1986 division reorganization. See Trial Tr.
3/19/97  at 119-20.


In addition to the erroneous GS-12 position description,  Sellers gave
Barbour a set of "performance standards"-- goals against which her
performance would be measured-- that he fashioned based upon
Peterson's GS-13 position de- scription. See Trial Tr. 3/20/97 at 58;
Trial Tr. 3/18/97 at 113.  Sellers devised Barbour's performance
standards simply by  photocopying the standards he had written for
Peterson as a  GS-13, neglecting on several pages even to change the
grade  from Peterson's GS-13 to Barbour's GS-12. See id. at 42.


Although Barbour did not immediately complain to Sellers  about being a
GS-12, she testified that Sellers took it upon  himself to promise
that he would promote her to GS-13 if she  performed well for a


He brought it up. As a matter of fact, I never brought it  up because I
didn't have to. He always did. When I  first took the job, he told me,
"Joyce, if you're in the job  for a year and have your first
performance evaluation, I  see no reason why I can't promote you, and
I will." And  throughout the year, as time went on, he constantly 
reminded me of that.


Id. at 44; see also id. at 109, 136. Never flatly denying that  he made
these statements, Sellers testified only that he "d[id]  not remember
ever promising her a promotion." Trial Tr.  3/20/97 at 11.


At Barbour's first annual performance review in October  1991, Sellers
rated her as "[e]xceeds expectations," just a few  points below
"outstanding." See Trial Tr. 3/18/97 at 45.  According to Barbour,
Sellers again brought up the prospect  of promoting her to GS-13,
telling her, " 'Joyce, I see no  reason why I can't initiate promoting
you in three to four  months.' " Id. When Barbour reminded Sellers of
his earli- er promise to promote her upon her first evaluation, not 
months thereafter, Sellers instructed her to consult Sarsah  McClean,
the personnel officer, to find out what needed to be  done to secure a
promotion. See id. at 45-46. McClean told  Barbour that because her
position description (the concededly  erroneous one) did not allow for
promotion past GS-12,  Sellers could only promote her either through a
process  called "accretion of duties," or by creating a new GS-13 
position for which she would have to compete. See Trial Tr.  3/19/97
at 114. Under the accretion-of-duties route, the em- ployee's
supervisor writes a memo to the personnel officer  explaining that the
employee is actually performing duties at  a level higher than the
grade specified in the position descrip- tion. See id. Although this
process often includes a desk 


audit--where the personnel officer sits down with the employ- ee and
examines the duties she is performing--the supervisor  can request
waiver of a desk audit. See id. at 121-22. From  EPA's Office of
Personnel Management, Barbour confirmed  that an employee can obtain
an accretion-of-duties promotion  without a desk audit so long as the
supervisor agrees that the  employee is actually performing duties at
a higher grade  level. See Trial Tr. 3/18/97 at 47.


Two months after her performance review, Barbour testi- fied, she tried
to confront Sellers about the status of her  promotion. See id.
Although he initially attempted to avoid  her, they finally got
together in December, at which time  Sellers told her that she would
have to have a desk audit.  See id. at 48-49. When Barbour explained
that both McCle- an and OPM confirmed that he had authority to waive
the  desk audit requirement, Sellers asked her to write a memo- randum
justifying her promotion to GS-13. See id. at 49.


In response, Barbour prepared a memorandum dated Feb- ruary 4, 1992,
which relied primarily on the fact that she had  the same performance
standards that Peterson had when  Peterson was a GS-13. See id. at
49-50. Claiming the  memorandum was insufficient, Sellers told Barbour
that he  needed something detailing the duties she was actually per-
forming. See Trial Tr. 3/20/97 at 16. Barbour prepared a  second
memorandum, this time appending to it a copy of  Peterson's GS-13
position description, which described the  duties Peterson performed
before Barbour took over her job.  This second memorandum expressly
asserted that Barbour  was performing each task itemized in Peterson's
GS-13 posi- tion description. See Trial Tr. 3/19/97 at 161.


In May, Sellers wrote Barbour a memorandum of his own,  agreeing that
Peterson's GS-13 position description was the  relevant comparison,
see Trial Tr. 3/20/97 at 17-18, but con- cluding that he could not
recommend her for promotion  because she was not performing all of the
duties detailed in  that position description, see id. at 16-17.
Sellers's memoran- dum listed seven specific duties that, if Barbour


forming, would justify her promotion in six months. See id.  at 17.
Barbour testified not only that she was already  performing most of
those duties, but also that any duties that  she was not performing
Peterson had not performed either.  See id. at 41-45. Four and a half
years later, without  assuming any additional duties, and without
undergoing a  desk audit, Barbour received a promotion to GS-13. See 
Trial Tr. 3/18/97 at 51, 53.


EPA makes three arguments challenging the sufficiency of  Barbour's
evidence, none of which is persuasive. First, the  agency argues that
no reasonable juror could have found race  discrimination based on a
comparison between the experi- ences of Barbour and Peterson because,
unlike Barbour,  Peterson obtained her promotion by submitting to a
desk  audit. However, not only did EPA's personnel officer testify 
that a supervisor can waive a desk audit, see Trial Tr. 3/19/97  at
121-22, but the record contains at least three examples of  employees
in Barbour's section who were promoted to GS-13  without desk audits:
Sarsah McClean, Kimberly Orr, and  Barbour herself, see id. at 109,
115. To be sure, only one of  these three non-desk audit promotions
occurred "in the early  1990's." Maj. Op. at 7. That the other two
promotions did  not occur until 1996, however, is irrelevant absent
evidence  that EPA's desk audit policy changed in the interim. EPA 
offered no such evidence. Indeed, toward the end of the trial  EPA's
lawyer obtained leave from the district court to call an  additional
witness to testify on precisely this subject, see Trial  Tr. 3/19/97
at 166, but inexplicably never did.


Not only does the promotion of these three employees to  GS-13 without
desk audits undercut EPA's argument that  Barbour and Peterson were
not similarly situated, but it  amounts to affirmative pretext
evidence that reasonably could  have led the jury to doubt the
agency's truthfulness. Assum- ing the role of jurors, however, my
colleagues disregard  Barbour's evidence that EPA's desk audit
justification was  false, concluding instead that the justification


been "intentionally deceitful" because EPA applied the puta- tive desk
audit rule to a white employee, not just to African- American
employees. See Maj. Op. at 7-8. It is true that  Aka v. Washington
Hospital Center suggests two hypotheti- cal situations in which no
reasonable juror could infer dis- crimination despite the demonstrated
falsity of the employer's  asserted justification: where "the
plaintiff shoots himself in  the foot" by proving improvidently that
the employer's real  motivation was something other than
discrimination; or  where the evidence undercutting the employer's
stated justifi- cation is weak and there is also "abundant independent
 evidence in the record that no discrimination has occurred,"  such as
evidence that the employer "has a strong record of  equal opportunity
employment." 156 F.3d 1284, 1291 (D.C.  Cir. 1998) (en banc). Neither
hypothetical bears any relation- ship to the facts of this case.
Barbour never shot herself in  the foot, and not only did EPA fail to
introduce any evidence  of a "strong" EEO record, but Barbour actually
introduced  evidence that the agency's EEO record was poor. See infra 


This court now creates a third situation in which evidence  disproving
an employer's asserted justification cannot support  an inference of
discrimination: where the false justification  has not been applied
exclusively to African-Americans. This  proposition assumes that an
employer who tells the same lie  to two different employees
necessarily does so for the same  reason. Although this assumption may
well be accurate in  some situations, it may be inaccurate in others.
Under Aka,  the jury was entitled to conclude that EPA's false desk
audit  justification--viewed in light of all of the other record evi-
dence of discrimination, see infra pp. 7-12--was pretext for  race
discrimination even though as applied to Peterson it was  not. My
colleagues' novel holding to the contrary creates an  impenetrable
legal safe harbor from Title VII liability: An  employer who has
denied promotion to a minority employee  ostensibly because of
tardiness, writing deficiency, or inability  to get along with others,
for example, can render legally  irrelevant all evidence demonstrating


fication merely by asserting that it has denied promotion to a  white
employee for the same reason.


EPA next argues that no reasonable juror could have found  race
discrimination based on a comparison between the expe- riences of
Barbour and Peterson because "Barbour failed to  refute Sellers' and
Peterson's testimony that the duties of the  two women differed."
Appellant's Br. at 16-17. EPA insists  that the record demonstrates
that Peterson performed fifteen  task management duties as a GS-13 and
that Barbour took  over only seven, see id. at 17, but the portion of
Sellers's  testimony it cites belies this assertion. While it is true
that  EPA's entire contract with CBSI entailed a total of fifteen 
task management functions, no one--not even Peterson-- testified that
Peterson performed all fifteen. Indeed, the  obvious gist of Sellers's
testimony was that Peterson was  performing eight task management
functions--not fifteen-- and that when Barbour took over she inherited
all but one.  See Trial Tr. 3/19/97 at 45-46; see also id. at 88-89.
Asked at  oral argument how many of Peterson's task management 
functions Barbour would have to have performed before  jurors could
reasonably conclude that she and Peterson were  "nearly identical" in
all relevant aspects, EPA's counsel,  believing erroneously that
Peterson had been performing all  fifteen duties, conceded that
thirteen out of fifteen would  certainly suffice. Why then isn't it
sufficient for my col- leagues that Barbour in fact took over seven


To be sure, the record reflects that in addition to those task 
management functions that Barbour did inherit, Peterson had  been
performing various GS-14 level policy functions that  Barbour did not
inherit. According to my colleagues, that  these policy functions are
GS-14 functions, not GS-13 func- tions, is of no significance because
the fact "[t]hat Peterson  was capable of handling more important
GS-14 level tasks is  plainly relevant to whether she would acquit
herself ade- quately in a GS-13 level position--or so an employer is 
entitled to believe." Maj. Op. at 5. The question before us,  however,
is not what this court thinks an employer is entitled 


to believe, but whether the jury reasonably could have be- lieved that
the fact that Barbour performed no GS-14 level  policy functions was
not the real reason why EPA refused to  promote her to GS-13. The
record contains ample evidence  to support such a conclusion.


To begin with, when Sellers first hired Barbour, he did not  tell her,
"Joyce, if you're in this job for a year and have your  first
performance evaluation, and if I determine at that time  that you are
performing not only GS-13 level functions but  also GS-14 level policy
functions like your friend Janette  Peterson, I see no reason why I
can't promote you, and I  will." Quite to the contrary, the jury heard
testimony that  Barbour's promised promotion in no way hinged on her 
performing GS-14 level functions. See Trial Tr. 3/18/97 at 44,  109,
136. In his May 1992 memorandum responding to  Barbour's promotion
request, moreover, Sellers made no  mention of her failure to take on
GS-14 level policy duties;  his memo focused exclusively on duties in
Peterson's GS-13  position description that he said Barbour would have
to  perform for six months in order to earn a promotion. See  Trial
Tr. 3/20/97 at 16-17. And in the end Barbour was  promoted to GS-13
without taking on any additional GS-14  level policy duties. See Trial
Tr. 3/18/97 at 52-53. If by  pointing out that "this is not a contract
case" my colleagues  mean to suggest that a supervisor's statements
regarding  promotion criteria are, as a matter of law, irrelevant to
the  question of pretext in Title VII cases, see Maj. Op. at 6 n.*, 
they are mistaken.


The court's conclusion that Barbour's eventual promotion  without
assuming additional duties is somehow irrelevant  because her
performance may have improved between 1991  and 1996 is also mistaken.
See id. at 6. Just as Sellers's  testimony regarding Barbour's
improvement supports my  colleagues' belief about why EPA eventually
promoted her, it  likewise supports the jury's apparent conclusion
that EPA  lied about its justification for not promoting her in the
first  place. If Sellers had testified that he refused to promote 


Barbour in 1991 because her performance of existing duties  needed
improvement--not that she needed to undergo a desk  audit and take on
additional duties (as he actually testified)-- this court's view of
the evidence might well have carried the  day in the jury room.
Weighing the evidence, my colleagues  conclude for themselves that
Sellers's varying statements  were not "inconsistent," id. at 6 n.**,
but this court has no  authority to ignore the jury's totally
plausible conclusion that  they were inconsistent. To be sure, the
court correctly  observes that "Barbour does not argue there is any
conflict  between" Sellers's statements, id., but she made no such 
argument for a good reason: EPA itself never argued that it  refused
to promote her because her performance needed  improvement--not at
trial, not in its opening appellate brief,  not in its reply brief,


Finally, EPA argues that no reasonable juror could have  found race
discrimination based on a comparison between the  experiences of
Barbour and Peterson because Peterson was a  GS-12 task manager for
two years before being promoted to  GS-13, whereas Barbour sought her
promotion after only one  year. Once again, however, the jury
reasonably could have  concluded from abundant record evidence that
this fact had  nothing to do with Barbour's non-promotion. In
testimony  that the jury was entitled to credit, Barbour said that
Sellers  expressly promised her that she would be promoted after one 
year, not two. See Trial Tr. 3/18/97 at 44, 109, 136. Then  after one
year, Sellers told her he would promote her in three  to four more
months, not twelve more months. See id. at 45.  And EPA ultimately
took six years, not two, to promote  Barbour to GS-13. See id. at


My colleagues give two reasons for distinguishing this case  from Aka.
First, they say that unlike the plaintiff in Aka,  "Barbour calls into
doubt only part of the EPA's proffered  explanation for its refusal to
promote her." Maj. Op. at 7.  But Barbour actually called into doubt
all of EPA's proffered  explanations: the putative desk audit
requirement, which 


Barbour demonstrated was not just waivable in theory but  actually
waived for at least three employees in her section;  the fact that
Peterson performed some GS-14 policy func- tions, which Barbour
demonstrated had nothing to do with  her eligibility for promotion to
GS-13; and the fact that  Peterson had an additional year of
experience as a GS-12  task manager, which Barbour also demonstrated
had nothing  to do with her GS-13 eligibility. See supra pp. 5-9. This
 case is thus just like Aka. There, as here, the record  contained
evidence from which a reasonable juror could con- clude that the
challenged employment decision was inexplica- ble absent invidious
discrimination. As Aka said: "Events  have causes; if the only
explanations set forth in the record  have been rebutted, the jury is
permitted to search for  others, and may in appropriate circumstances
draw an infer- ence of discrimination." 156 F.3d at 1292.


As its second ground for distinguishing Aka, the court says  that
Barbour's "apples-and-oranges" comparison of herself  and Peterson
fails to establish even a prima facie case of race  discrimination.
Maj. Op. at 8. This is a curious point given  my colleagues'
concession that the entire burden-shifting  paradigm is now irrelevant
and that the only question before  the jury was the " 'ultimate
question of discrimination vel  non.' " Id. at 9 (quoting United
States Postal Serv. Bd. of  Governors v. Aikens, 460 U.S. 711, 715
(1983)). But even  taking the comparison issue on the court's terms,
the question  is simply whether the jury reasonably could have
concluded  from the record that Barbour and Peterson were similarly 
situated in all relevant respects. Surely a hypothetical jury  would
be free to conclude that two employees were similarly  situated for
purposes of a given promotion even if the employ- er introduced
evidence that one was more polite or better  read than the other, so
long as the record reasonably sup- ported the conclusion that
politeness or erudition were not  relevant promotion criteria. The
record in this case amply  supports the jury's apparent conclusion


similarly situated to Peterson in all respects relevant to the  GS-13
position.


Also missing from the court's Aka discussion is any men- tion of the
fact that in addition to Barbour's evidence that she  and Peterson
were similarly situated with respect to the GS- 13 position, and in
addition to her evidence that each of  EPA's proffered justifications
was pretextual, Barbour testi- fied that EPA has a poor equal
employment opportunity  record with respect to African-Americans in


The history of the program has been that minorities  have been pretty
much on the lower end of it. Out of  400 to 500 staff people, you only
have, I'd say, maybe two  section chiefs who were at the 14 level. One
was tempo- rary. 13's in IMD out of my division, 50, 60 people,  maybe
four--maybe five or six 13's who were African- American, if that
many.


Trial Tr. 3/18/97 at 59. Perhaps there is a good answer to  Barbour's
assertion. For example, perhaps these numbers-- five or six
African-American GS-13s out of fifty or sixty  total GS-13s--actually
reflect the availability of African-  Americans in the relevant labor
market. But EPA never  offered any such evidence, nor did it move to
strike Barbour's  testimony as either irrelevant or lacking in
foundation. As  Aka made clear, the jury could properly have
considered  Barbour's unrebutted testimony in determining whether EPA 
failed to promote her because of her race. See Aka, 156 F.3d  at 1295


Of course Title VII "does not authorize a federal court to  become 'a
super-personnel department that reexamines an  entity's business
decisions.' " Maj. Op. at 6 (quoting Dale v.  Chicago Tribune Co., 797
F.2d 458, 464 (7th Cir. 1986)). But  neither does Title VII authorize
federal judges to become  super-jurors, weighing evidence and drawing
independent  conclusions regarding the ultimate question of
discrimination.  I have certainly seen stronger Title VII cases than
this one;  indeed, had I been a juror, I might well have cast my vote
for  the employer. But acknowledging that the merits of this case 


are debatable is a far cry from holding that no rational person  could
agree with the jury's conclusion.


Racial Harassment


I do agree with my colleagues that the record contains  insufficient
evidence to support the jury's conclusion that  CBSI's treatment of
Barbour rose to the level of actionable  racial harassment. Even
giving Barbour "the advantage of  every fair and reasonable inference
that the evidence may  justify," Coburn, 711 F.2d at 342, the most
this record  demonstrates is that CBSI employees sometimes put Bar- 
bour's requests at the bottom of the pile, and that on one  occasion a
CBSI employee turned her back on Barbour in a  meeting. Though we must
not reverse a jury verdict unless  the evidence "is so one-sided that
reasonable [jurors] could  not disagree," Hayman, 23 F.3d at 537, I
cannot fathom on  what basis the jury could have determined that
Barbour's  " 'workplace [was] permeated with discriminatory intimi-
dation, ridicule, and insult that [was] sufficiently severe or 
pervasive to alter the conditions of [her] employment and  create an
abusive working environment.' " Oncale v. Sun- downer Offshore
Services, Inc., 118 S. Ct. 998, 1001 (1998)  (quoting Harris v.
Forklift Sys., Inc., 510 U.S. 17, 21 (1993)).


Perhaps the answer is this: The jury never made that  determination
because it was never instructed regarding the  meaning of the legal
term of art "harassment." The only  instruction the district court
gave the jury with respect to  Barbour's harassment claim was the


[T]he plaintiff must show ... that [she] gave notice to  the defendant
... that racial harassment was being  engaged in by the corporation or
by the employees of the  contractor, and that the defendant failed to
take ...  prompt and adequate remedial action against it.


Trial Tr. 3/21/97 at 46. The jury thus had no way of knowing  that to
rule for Barbour, it had to find not just "harassment,"  but "severe
or pervasive" harassment. Although EPA does  not raise this issue, I
suspect the district court's incomplete 


instruction may explain the jury's untenable harassment ver- dict.


The District Court's Comments on the Evidence


Since I would affirm the district court's denial of judgment  as a
matter of law on Barbour's failure-to-promote claim, I  must address
EPA's alternative argument that it is nonethe- less entitled to a new
trial because the district court preju- diced the jury through
improper comments on the evidence.  Because I agree with EPA that the
district court's comments  were prejudicial, I would reverse and
remand for a new trial.


Federal judges have "inherent authority ... to comment on  the
evidence," United States v. Liddy, 509 F.2d 428, 438 (D.C.  Cir.
1974), but that authority "is not arbitrary and uncon- trolled, but
judicial, to be exercised in conformity with the  standards governing
the judicial office," Quercia v. United  States, 289 U.S. 466, 470
(1933). Judges must " 'use great  care that an expression of opinion
upon the evidence should  be so given as not to mislead, and
especially that it should not  be one-sided.' " Wabisky v. D.C.
Transit Sys., Inc., 326 F.2d  658, 659 (D.C. Cir. 1963) (quoting


Applying this standard, I believe the trial judge crossed the  line by
making statements that the jury could have viewed as  signaling not
just his hostility toward the agency, but also  that he believed the
evidence demonstrated that Barbour was  a victim of discrimination.
For example, in overruling an  EPA objection during Barbour's
cross-examination, the dis- trict judge said this:


Let me just give you the reason why I overruled your  objection. As far
as I am concerned, in these discrimina- tion cases coming out of
federal agencies, the agencies  have all the powerful people in there,
from the director  or chairman or administrator on down; they have all
the  records; they have all the files; they make up the rules;  and
they can go on and on, and the person who is  complaining about them
is usually alone, with just one  lawyer and maybe a couple of people
who also claim they  are discriminated against. When they come to


which is the first time that they come to a place where  justice is
done--where people don't protect each other,  where people don't agree
with each other from the lowest  to the highest--here they get a fair
shake and here they  get a chance to talk, and they are going to get a
chance  to talk as long as I am here whether you object to it or 


Trial Tr. 3/20/97 at 54-55. At another point, the judge  responded to
the testimony of a defense witness (an EPA  employee) by stating: "No
wonder the public and the Con- gress are upset about agencies in
Washington." Id. at 38.  In a trial like this, where the agency's
veracity was central to  its defense, I can hardly imagine anything
more prejudicial  than for the judge to tell the jury that agencies
like EPA  "have all the power[ ]," that they "make up the rules," that
 they cover up for each other through lies, that they refuse to  do
justice until hauled into court, and that the public no  longer has
any confidence in them.


The judge also challenged Sellers's credibility: "That's  under oath?
You are testifying under oath?" Id. at 13.  Because Barbour's
failure-to-promote claim ultimately hinged  on Sellers's credibility,
our statement in United States v.  Tilghman applies here as well:
"Because juries, not judges,  decide whether witnesses are telling the
truth, and because  judges wield enormous influence over juries,
judges may not  ask questions that signal their belief or disbelief of
wit- nesses." 134 F.3d 414, 416 (D.C. Cir. 1998).


District judges certainly enjoy wide discretion to manage  trials,
including questioning witnesses aggressively and com- menting on the
evidence. In fact, most of the judge's com- ments that EPA challenges
were not at all inappropriate.  But because of the particular comments
discussed above, I  think the district court went too far. Indeed, the
judge's  comments may well help explain why the jury ruled for 
Barbour on this relatively weak (though sufficient) record.  Just as
Barbour deserved to have her case decided by the  jury without
improper judicial interference, so did EPA.