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


HOLBROOK, DAWNELE

v.

RENO, JANET


98-5462a

D.C. Cir. 1999


*	*	*


Tatel, Circuit Judge: Concluding that appellant, a new  agent trainee
at the FBI Academy, had not forthrightly  answered questions about an
alleged improper relationship  with her physical trainer, the FBI
found her unsuitable to  become a Special Agent, reassigned her to her
former job as  an Intelligence Assistant, and suspended her for five
days.  Appellant filed suit under Title VII of the Civil Rights Act of
 1964, claiming that the FBI discriminated against her on the  basis
of sex, created a hostile work environment by subjecting  her to an
intrusive and abusive four-hour interview, and  retaliated against her
when she filed an EEO complaint. At  the close of appellant's case,
the district court, finding that  she had failed to produce evidence
upon which the jury could  return a verdict in her favor on any of her
claims, granted the  Government's motion for judgment as a matter of
law. We  affirm.


I


After graduating from high school in 1987, Appellant Daw- nele Lyn
Holbrook went to work for the Federal Bureau of  Investigation. She
received consistent "exceptional" job rat- ings and several
promotions. Having put herself through  college, Holbrook entered the
FBI Academy at Quantico in  1995 to begin training to become a Special
Agent. Her  experience at the Academy forms the basis of this lawsuit.
 Because the district court granted judgment as a matter of  law, we
describe the facts in the light most favorable to  Holbrook. See
McGehee v. CIA, 697 F.2d 1095, 1098 n.3  (D.C. Cir. 1983).


Holbrook performed well in new agent training. Having  developed shin
splints during physical exercises, she was  referred for treatment to
Joe Palermo, an FBI Agent, in- structor, and physical trainer.
Holbrook and Palermo be- came friends. They talked about his children
and her career  goals. At one point, Holbrook went to Palermo's house
to  pick up empty boxes to move some personal belongings. 


Seeking a quiet place to study, Holbrook went to his house  again the
next week. Because bad weather had made the  roads dangerous, she
accepted Palermo's invitation to spend  the night and slept on a
downstairs couch. Holbrook spent  the night at Palermo's home on three
other occasions, each  time sleeping on the couch.


At a party celebrating the end of the training program,  Special Agent
Kevin Crawford, the primary instructor for  Holbrook's class at the
Academy, observed "eye contact"  between Holbrook and Palermo.
Suspecting an improper  relationship between the two, Crawford
reported his observa- tions to Special Agent Lisa Massaroni, the staff
counselor  responsible for supervising the new agents in Holbrook's 
class. Massaroni did not report the information to her supe- riors.


This was not the first time Crawford had taken an interest  in
Holbrook. He had told Palermo that Holbrook was "fine"  and, on
another occasion, that Holbrook could some day be  "the next Mrs.
Palermo." Although Holbrook herself charac- terized Crawford as a
"good instructor," she cited several  instances in which he was
"unprofessional." For example, he  declared his preference for
"long-haired blonds" (Holbrook is  blond) and made crude sexual


Crawford's suspicions about a Palermo/Holbrook relation- ship were
heightened when, a week after the party, Palermo  told Crawford that
Holbrook was sick and that the nurse had  told him that she should not
participate in a training exercise  the next day. Questioning the
nurse, Crawford learned that  although Holbrook had in fact been
excused from the exer- cise, the nurse had never told Palermo about
her illness.  Crawford reported Palermo's false statement about the
nurse,  as well as his own suspicions of a relationship, to his
superior,  Acting Unit Chief Brent Mosher. Mosher had heard about  the
possible relationship from another instructor. He report- ed these
suspicions to his superior, Assistant Director in  Charge of the
Academy George Clow, and his deputy, Jeffrey  Higginbotham. Concerned
that an instructor might be show-


ing favoritism to a trainee, Higginbotham directed Unit Chief  Marlene
Hunter and Agent Massaroni to interview Holbrook.


During the interview with Massaroni and Hunter, Holbrook  denied any
romantic relationship with Palermo. Asked if she  had been to his home
on a date, she answered no. The  investigation was closed.


Over the following weekend, Holbrook became concerned  about having
told the agents that she had not been to  Palermo's house for a date.
Wanting to clarify that she had  been there, but not for a date, she
went to see Massaroni.  Massaroni had prepared an electronic
communication that  summarized the interview and stated that Holbrook
denied  having been to Palermo's home. Holbrook corrected it to  read
that she had been there "to pick up moving boxes."


When Clow and Higginbotham learned that Holbrook had  corrected the
electronic communication, they obtained autho- rization from the FBI's
Office of Professional Responsibility  ("OPR") to open a formal
investigation. Two agents reinter- viewed Holbrook. According to
Holbrook, the agents ques- tioned her about her "entire sex life" and
repeatedly asked  her whether she had had sexual relations with
Palermo or  with other FBI agents. Although Holbrook told them that it
 was difficult for her to answer their questions because she  had been
sexually abused as a child, they continued the  questioning. Holbrook
testified: "It was just very humiliat- ing and very degrading and
embarrassing to have to try to  explain a feeling inside or a scare
to--to two people that you  don't know, and also to people that you
know are holding your  career in their hands." "[A]t one point,"
Holbrook testified,  "they became very evasive in their questioning,
where it  didn't matter if I had slept with Mr. Palermo one time or 50
 times, that they just basically needed to know how many  times I had
slept with him." The agent who testified at trial  disputed Holbrook's
characterization of the meeting, claiming  that Holbrook's evasiveness
prolonged the session, which  lasted four hours.


Based on this interview, Clow concluded that Holbrook had  lied about
her visits to Palermo's house. He also concluded 


that she had violated an order not to speak with Palermo  during the
pendency of the OPR investigation. Finding  Holbrook unsuitable to
become an FBI Agent, Clow removed  her from the Academy and reassigned
her to her previous job  as an Intelligence Assistant.


OPR subsequently completed its investigation, finding that  Holbrook
had committed three offenses: exercising poor  judgment by maintaining
a personal relationship with an  instructor; initially lying to her
superiors; and disobeying  Clow's order not to talk to Palermo. The
Unit Chief of  OPR's Adjudication Unit, Charles Dixon, approved the
OPR  staff's recommendation of a three-day suspension. The Acad- emy
had recommended only a letter of censure. Noting that  Holbrook's
misconduct involved "lying and blatant insubordi- nation," Dixon's
superiors increased the suspension from  three to five days.


During the pendency of the OPR investigation, Holbrook  filed an EEO
complaint challenging her removal from the  Academy. Unable to resolve
the complaint, Holbrook filed  suit in the United States District
Court for the District of  Columbia pursuant to Title VII of the Civil
Rights Act of  1964. See 42 U.S.C. ss 2000e et seq. She claimed sex 
discrimination, sexual harassment, and retaliation for having  filed
the EEO complaint. After the district court denied the  FBI's
pre-trial motions, Holbrook tried her case to a jury  over three days.
She presented thirteen witnesses.


Following the close of her evidence, the district court  granted the
Government's motion for judgment as a matter of  law pursuant to
Federal Rule of Civil Procedure 50(a), con- cluding that Holbrook had
failed to produce evidence from  which the jury could find in her
favor on any of her claims.  With regard to her discrimination claim,
the district court  identified several breaks in the chain of
causation between  Crawford's allegedly discriminatory remarks and
Clow's deci- sion to remove Holbrook from the Academy. The district 
court also found that Holbrook had not identified any "simi- larly
situated" employees and thus failed to make out a prima  facie case of
indirect discrimination. Pointing to the absence 


of any evidence relating to "pervasive conduct" or "intolerable 
conditions," the district court found that no reasonable juror  could
conclude that the four-hour interview amounted to  sexual harassment.
Finally, observing that the evidence on  the retaliation claim was
"thin to the point of abstraction," the  district court concluded that
Holbrook had failed to produce  any evidence that the five-day
suspension was influenced by  the filing of the EEO complaint.


II


District courts may grant judgment as a matter of law only  if "there
is no legally sufficient evidentiary basis for a reason- able jury to
find for" the nonmoving party. Fed. R. Civ. P.  50(a)(1). We review
grants of judgment as a matter of law de  novo, affirming only if we
find, based on our own independent  review of the evidence, that no
reasonable jury could reach a  verdict in the plaintiff's favor. In
making this determination,  we view "the evidence in the light most
favorable to [the  plaintiff] and resolve all conflicts in [the
plaintiff's] favor."  Scott v. District of Columbia, 101 F.3d 748,
752-53 (D.C. Cir.  1996). Applying this standard, we consider each of
Hol- brook's claims in turn.


Sex Discrimination


Title VII makes it an "unlawful employment practice for an  employer to
fail or refuse to hire or to discharge any individu- al, or otherwise
to discriminate against any individual with  respect to his
compensation, terms, conditions, or privileges  of employment, because
of such individual's ... sex." 42  U.S.C. s 2000e-2(a)(1). Holbrook
alleges that the FBI dis- criminated against her on the basis of her
sex in violation of  Title VII when it found her unsuitable to become
a Special  Agent and reassigned her to her former non-Agent job as an 
Intelligence Assistant. Holbrook may prove her case in one  of two
ways: she may provide direct evidence of her employ- er's
discriminatory intent, or she may invoke the burden- shifting
framework of McDonnell Douglas Corp. v. Green,  411 U.S. 792 (1973).


Crawford's behavior forms the basis for Holbrook's direct 
discrimination claim. Contending that "Crawford created an 
unprofessional and sexually-charged environment" by indicat- ing his
preference for long-haired blonds, making various  sexual comments,
and telling another instructor that Hol- brook was "fine," Holbrook
argues that "but for Mr. Craw- ford's gender-based interest in [her]
personal life, she would  now be serving as an FBI agent." She argues
that because  Crawford was the "driving force" in the process that led
to  her termination, his improper comments amount to evidence  of


Holbrook's direct discrimination case suffers from two fatal  flaws.
First, not only did she introduce no evidence from  which the jury
could have concluded that Crawford harbored  any discriminatory
intent, but her counsel described Craw- ford's behavior as merely
"sort of immature." Holbrook  herself testified only that Crawford was
"a little unprofession- al."


Second, even if the jury could have concluded from Craw- ford's
"immature" behavior that he intended to discriminate  against
Holbrook, Crawford's behavior cannot form the basis  of a direct
discrimination claim because the record contains  no evidence that he
participated in the Bureau's decision that  Holbrook was unsuitable to
become an FBI Agent. As the  district court pointed out, there are at
least two breaks in the  chain of causation between Crawford's actions
and Holbrook's  removal from the Academy. Contrary to Holbrook's
conten- tion that Crawford was the "driving force" behind the investi-
gation into an improper relationship between her and Paler- mo,
Mosher, the Acting Unit Chief, testified that another  instructor had
reported similar concerns. Even more impor- tant, it was not the
investigation of Palermo--the investiga- tion that Crawford may have
initiated--that ultimately led to  Holbrook's removal from the
Academy. Both Clow and  Higginbotham testified that they considered
the Palermo  matter closed after Holbrook denied going to his house.


after Massaroni reported that Holbrook may have lied did  they reopen
the investigation.


This case is controlled by Hall v. Giant Food, 175 F.3d  1074 (D.C.
Cir. 1999). Hall held that a supervisor's discrimi- natory remarks
could not be considered evidence of discrimi- nation because the
decision to dismiss the employee was  made not by the supervisor, but
by the company's Director of  Transportation. See id. at 1079-80.
Although the supervisor  had reported the employee's misconduct to the
Director, the  Director "made an independent assessment of Hall's con-
duct." Id. at 1080. The same happened here. Clow "made  an independent
assessment" of Holbrook's conduct and deter- mined that she was
unsuitable to become an FBI Agent.  Nothing in the record indicates
either that Crawford had  input into Clow's decision or that Crawford
discussed Hol- brook's suitability with Clow or Higginbotham.
Holbrook's  counsel never questioned Crawford on this critical


Holbrook's indirect discrimination claim fares no better.  To establish
a prima facie case under the McDonnell Douglas  framework, Holbrook
must demonstrate (1) that she is a  member of a protected class; (2)
that she was similarly  situated to an employee who was not a member
of the  protected class; and (3) that she and the similarly situated 
person were treated disparately. See McDonnell Douglas,  411 U.S. at
802; Ramsey v. American Air Filter Co., Inc.,  772 F.2d 1303, 1307
(7th Cir. 1985). Although the McDonnell  Douglas framework "drops from
the case" once the defendant  responds to the plaintiff's proof and
offers rebuttal evidence,  it remains relevant here because the
district court granted  judgment as a matter of law before the
Government present- ed its case. United States Postal Service Bd. of
Govs. v.  Aikens, 460 U.S. 711, 715 (1983).


To prove that she is similarly situated to a male employee,  a female
plaintiff must demonstrate that she and the allegedly  similarly
situated male employee were charged with offenses  of "comparable
seriousness." See Lynn v. Deaconness Med.  Ctr., 160 F.3d 484, 488
(8th Cir. 1998) (internal quotation 


marks omitted). A plaintiff must also demonstrate that "all  of the
relevant aspects of her employment situation were  'nearly identical'
to those of the male" employee. Neuren v.  Adduci, Mastriani, Meeks &
Schill, 43 F.3d 1507, 1514 (D.C.  Cir. 1995) (quoting Pierce v.
Commonwealth Life Ins. Co., 40  F.3d 796, 802 (6th Cir. 1994)). Neuren
concluded that a  female associate at a law firm who was terminated
because of  her failure to get along with others was not similarly
situated  to a less senior male associate who had trouble with legal 
writing. 43 F.3d at 1514. Barbour v. Browner, 181 F.3d  1342 (D.C.
Cir. 1999) concluded that two EPA employees with  similar job
descriptions, one a GS-12 and the other a GS-13,  were not similarly
situated. In making this determination,  Barbour relied on the fact
that the GS-13 performed several  duties that the GS-12 (the


With this standard in mind, we turn to Holbrook's evidence.  She claims
to be similarly situated to three employees: two  new agent trainees
allowed to become FBI Agents despite  their misconduct and Palermo
himself. The district court  concluded that none was similarly
situated to Holbrook, and  we agree.


Holbrook's counsel elicited from Clow only sketchy details  about the
first of the agent trainees. Calling the trainee a  "class clown,"
Clow expressed concerns about his suitability  to become an FBI Agent,
explaining that the trainee "said  inappropriate things at
inappropriate times" and "was an  instigator of class misbehavior."
Despite this immature be- havior, the trainee was permitted to
graduate. From what  little we know about the trainee, we share the
district court's  view that his situation was not "nearly identical"
to Hol- brook's. Holbrook's offenses--lack of forthrightness and dis-
obedience--and immature behavior are hardly of "comparable 


The second trainee admitted to drinking before driving.  Although the
FBI reprimanded the agent for poor judgment,  it allowed him to
graduate. As the district court concluded,  this trainee is not
similarly situated to Holbrook because, like  the first trainee, he
was accused of "misconduct of a type that 


does not involve honesty and forthrightness, which is what  Ms.
Holbrook's case was about."


Palermo's offense, unlike the offenses of the two agent  trainees, is
comparable to Holbrook's. Holbrook was disci- plined for lying and
disobedience; Palermo was disciplined  for lying and engaging in an
improper relationship with a  subordinate. At this point, however, the
similarity between  Palermo and Holbrook ends. Palermo was a
fifteen-year FBI  veteran with supervisory responsibilities. Holbrook
was a  probationary trainee. Neuren's conclusion that the two law 
firm associates were not similarly situated rested in part on  the
difference in their seniorities. Because "the partners  weren't as
pressed to make a decision regarding [the less  senior male
employee's] partnership prospects as they were  with [the
plaintiff's]," the plaintiff could not create an infer- ence of
discrimination by reference to the fact that she was  fired but he was
not. 43 F.3d at 1514. If the difference in  seniority between the
Neuren plaintiff and another associate  undermined her claim that they
were similarly situated, we  cannot see how Holbrook, a probationary
trainee, could possi- bly be similarly situated to a fifteen-year
veteran with super- visory responsibilities. Indeed, in McKenna v.
Weinberger,  729 F.2d 783 (D.C. Cir. 1984), we expressly held that a 
probationary employee was not similarly situated to a perma- nent
employee, noting that "agency regulations mandated  that probationary
employees with serious performance prob- lems were to be terminated,
even if those problems would not  have been good cause for terminating


Holbrook and Palermo are not similarly situated for anoth- er, related
reason. As the FBI points out, their different  seniorities made it
impossible for the FBI to discipline them  similarly. Because Palermo
had been an Agent for fifteen  years, finding him unsuitable to become
an Agent (Holbrook's  sanction) was simply not an option. Because
Holbrook was a  probationary trainee, reassigning her to a different
Agent  position (Palermo's sanction) was likewise not an option. And 
with respect to the sanction that the FBI could impose on 


both--suspension--Palermo's was more severe (his two  weeks versus her
five days).


Sexual Harassment


Two types of sexual harassment are actionable under Title  VII: quid
pro quo and hostile work environment. See Meri- tor Savings Bank v.
Vinson, 477 U.S. 57, 65-66 (1986). This  case involves the latter.
Holbrook argues that the intrusive  nature of the questioning during
the four-hour interview with  the two agents, together with the
abusive manner in which  she says it was conducted, created a hostile
work environ- ment. To violate Title VII, Meritor requires that
workplace  harassment be "sufficiently severe or pervasive to 'alter
the  conditions of [the victim's] employment' " and " 'unreasonably 
interfer[e] with an individual's work performance.' " Id. at  67, 65
(internal citations omitted).


In evaluating the sufficiency of the harassment evidence, it  is
important to keep in mind that Holbrook does not claim  that
Crawford's "unprofessional" and "immature" behavior  contributed to
the allegedly hostile work environment. She  focuses only on the
four-hour interview, testifying that she  was questioned about
"basically every sexual relationship" in  which she had ever been


Fully crediting Holbrook's version of the interview, the  jury could
have concluded that it covered intrusive subjects of  an extremely
personal nature not at all relevant to the  investigation. The jury
could also have found that these  questions were asked in an abusive
and degrading manner.  What the jury could not have concluded--because
neither  Holbrook's testimony nor any other evidence at trial ad-
dressed the issue--was that the interview either " 'alter[ed]  the
conditions' " of Holbrook's employment or " 'unreasonably 
interfer[ed] with [her] work performance,' " as Meritor re- quires.
477 U.S. at 67, 65 (internal citations omitted). Did  the nature of
the questioning change the nature of Holbrook's  job? Did the
questioning change how Holbrook felt about  her job? Did it interfere
with her job performance or make it  more difficult for her to do her


people treated her? The jury would have had no way of  knowing answers
to questions that Holbrook's attorney never  asked.


All the record reveals about Holbrook's post-interview  work
environment is that she returned to her non-Agent job,  where she
continued to perform exceptionally well. To be  sure, Holbrook did
testify that it was "difficult" to return to  her former job "with
everybody knowing that [she] didn't  accomplish what [she] set out to
do." What other people  thought about whether she had accomplished her
goals, how- ever, has nothing to do with the effects of the interview,
the  basis of her sexual harassment claim. We thus agree with  the
district court that no reasonable jury could have found  that the
interview created a hostile work environment.


Retaliation


We turn finally to Holbrook's claim that the FBI retaliated  against
her for filing the EEO complaint. Because she did  not file the
complaint until after the FBI determined that she  was unsuitable to
become a Special Agent, her retaliation  claim focuses only on the
five-day suspension. And because  the OPR investigation began before
she filed her EEO com- plaint, her retaliation cause of action boils
down to her claim  that "her punishment was progressively increased"
from a  letter of censure to a five-day suspension.


Claims of retaliation are governed by the McDonnell Doug- las
burden-shifting framework. See Carney v. The American  University, 151
F.3d 1090, 1094 (D.C. Cir. 1998). To estab- lish a prima facie case, a
plaintiff must show that (1) she  engaged in statutorily protected
activity; (2) her employer  took an adverse personnel action against
her; and (3) a causal  connection between the two exists. Id. at 1095.
If a prima  facie case is established, the burden of production shifts
to  the employer to articulate a legitimate, nondiscriminatory  reason
for the adverse action. The employee must then  prove by a
preponderance of the evidence that the asserted  reason is a pretext
for retaliation. See McKenna, 729 F.2d at  790.


Holbrook has easily satisfied the first two elements of a  prima facie
case. She engaged in statutorily protected activi- ty by filing an EEO
complaint. She was subject to adverse  personnel action when she was
suspended for five days.


To satisfy the third element of a prima facie case--a causal 
connection between the statutorily protected activity and the  adverse
personnel action--Holbrook must show that the FBI  "had knowledge of
[her] protected activity, and that the  adverse personnel action took
place shortly after that activi- ty." Mitchell v. Baldrige, 759 F.2d
80, 86 (D.C. Cir. 1985).  Charles Dixon, the head of the OPR
Adjudication Unit who  recommended the three-day suspension, testified
that he  knew about Holbrook's EEO complaint. But the record does  not
establish that Dixon's superiors knew about the complaint  when they
increased the suspension from three to five days.  Holbrook's counsel
never called them to testify.


We need not decide whether Dixon's knowledge alone could  be sufficient
to make out a prima facie case, for even if  Holbrook had established
a prima facie case, the FBI has  satisfied its burden of articulating
a legitimate, nondiscrimi- natory reason for Holbrook's five-day
suspension, and Hol- brook has offered no evidence of pretext. As to
the FBI's  burden, Dixon explained that Holbrook's conduct--lying,
dis- obedience, and poor judgment--merited a sanction more seri- ous
than a letter of censure. He also characterized the three- day
suspension that he recommended as "relatively minor."  While the
record contains no direct testimony explaining why  Dixon's superiors
increased the suspension to five days, one  of the superiors wrote in
a note that "lying and blatant  insubordination[ ] [d]eserve more than
three [days] unless  there is strong precedent in opposition." The OPR
report  reviews Holbrook's misconduct in detail, canvasses prior 
cases involving discipline of new agent trainees, and concludes  that
a five-day suspension is appropriate. Holbrook, more- over, points to
no evidence from which the jury could have  inferred that these
plainly nondiscriminatory explanations  were a pretext for punishing
her for filing the EEO com- plaint. As the district court found,
"There was absolutely no  credible suggestion on this record that


enced or that [the decision to suspend Holbrook for five days]  was
affected in any way by the pendency of the plaintiff's  EEO
complaint." The only relevant evidence is to the con- trary: asked by
Government counsel if he had been influ- enced by the filing of the
EEO complaint, Dixon said no.


Because Holbrook offered no evidence on which the jury  could have
found in her favor on any of her claims, we affirm.


So ordered.