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


CONES, KENNETH L.

v.

SHALALA, DONNA E.


97-5093a

D.C. Cir. 2000


*	*	*


Tatel, Circuit Judge: In this case, we consider a federal  government
employee's complaint that his agency denied him  a promotion on the
basis of race and then retaliated against  him when he complained.
Because we disagree with the  district court's conclusion that
appellant failed to establish a  prima facie case of discrimination
and retaliation, and because  the record contains sufficient evidence
from which a jury  could infer that the agency's stated reason for
selecting a  white person was pretext for racial discrimination, we
reverse  the district court's grant of summary judgment to the govern-


I


Appellant Kenneth Cones, an African American, began  working for the
federal government in 1970 as a GS-1.  Advancing up the career ladder
during the next two decades,  Cones eventually became a GS-14 Special
Assistant to the  Director of the Division of Buildings Management and
Tele-  communications, part of the Office of the Assistant Secretary 
for Management and Budget ("ASMB") at the Department of  Health and
Human Services. At ASMB, Cones received  uniformly excellent
evaluations and applied for several pro-  motions but was never
selected. Each time HHS filled the  position with a white person.


In 1992, the head of ASMB, Assistant Secretary Arnold  Tompkins, also
an African American, reorganized ASMB,  dissolving the Office of
Management and Acquisition where  Cones was working and dividing its
functions between two  newly created entities. One of the new
entities, the Adminis-  trative Service Center ("ASC"), was given
responsibility for  day to day physical operations of HHS, including
building  maintenance, management of the wellness center, and special 
program coordination. Tompkins detailed Cones to serve as 




__________

n  * Circuit Judge Ginsburg was present for oral argument but took  no
part in either the consideration or the decision of this case.


Acting Director of ASC. Although the new position was  rated GS-15 and
Cones was still a GS-14, personnel regula-  tions permitted Tompkins
to detail Cones to the position for  up to 120 days without using the
competitive selection pro-  cess. See 5 C.F.R. s 335.103(c)(1)(ii).
Tompkins testified  that he detailed Cones to the Acting Director
position be-  cause ASMB had been criticized for having a poor EEO 
record and also because he thought Cones deserved an oppor-  tunity to
enhance his skills.


A month and a half into Cones' detail, the 1992 Presidential  election
occurred. An appointee of President Bush, Tomp-  kins knew that his
tenure as Assistant Secretary would soon  end, so he decided that it
would be "inappropriate" to adver-  tise or permanently fill the ASC
Director position before he  left office. After President Clinton's
inauguration, and after  Elizabeth James, a white female and ASMB's
highest ranking  career employee, became Acting Assistant Secretary,
Cones  requested that the ASC Director position be competitively 
advertised so that he could remain in it either permanently or  at
least for an extended period of time. James refused,  instead
detailing a white female GS-14, Rosalie Reggetz, to  the position for
120 days. In response, Cones filed an  informal complaint of
discrimination with HHS's Equal Em-  ployment Opportunity Office.
Although the EEO Counselor  recommended reinstating Cones to the ASC
Director position,  HHS refused. Cones then filed a formal complaint
of dis-  crimination, to which he later added a retaliation claim
based  on the Department's failure to consider him for a different 


During this entire period, ASMB was operating under an  "informal"
hiring freeze, meaning that senior management  made every effort to
avoid hiring new personnel. On Febru-  ary 10, President Clinton
issued an Executive Order estab-  lishing a goal of eliminating
100,000 federal government posi-  tions. See Executive Order No.
12,839, 58 Fed. Reg. 8515  (1993). In relevant part, the Executive


Each executive department or agency with over 100  employees shall
eliminate not less than 4 percent of its  civilian personnel positions
... over the next 3 fiscal  years. The positions shall be vacated
through attrition  or early out programs established at the discretion
of the  department and agency heads. At least 10 percent of  the
reductions shall come from the Senior Executive  Service, GS-15 and
GS-14 levels or equivalent.


Id.


Several months later, President Clinton's nominee for As-  sistant
Secretary, Kenneth Apfel, was confirmed and took  office. Because
Reggetz's 120 day detail was about to end,  and because her
appointment, like Cones', could not be re-  newed, another ASMB
employee, Peggy Dodd, also a white  female, was selected to serve as
Acting Director for 120 days.  Unlike Cones and Reggetz, Dodd was a
GS-15 and had been  transferred laterally rather than promoted to the
position.  As a result, personnel regulations permitted HHS to appoint
 her as permanent ASC Director without competitively adver-  tising
the position. See 5 C.F.R. s 335.103(c)(3)(v). This  HHS did on


Cones then amended his still-pending EEO complaint, add-  ing an
allegation that HHS had discriminated and retaliated  against him by
failing to consider and hire him for the  permanent ASC Director
position. After his EEO complaint  had been pending for well over a
year, Cones filed suit in the  United States District Court for the
District of Columbia  charging race discrimination and retaliation
with respect to  the permanent position. He also charged
discrimination in  connection with the Department's failure to hire
him for other  positions dating back to 1989.


Granting summary judgment for the Department, the dis-  trict court
found that Cones had failed to establish a prima  facie case of
discrimination with respect to the ASC Director  position because
Dodd, the white person selected to fill the  position, had been
laterally transferred rather than promoted.  See Cones v. Shalala, 945
F. Supp. 342, 349 (D.D.C. 1996).  Alternatively, the district court
found, HHS had articulated a 


non-discriminatory reason for selecting Dodd--that it was in  the midst
of downsizing--and Cones had failed to present  sufficient evidence to
establish that this reason was pretext  for discrimination. Id. The
district court dismissed Cones'  retaliation claim, again concluding
that Cones had established  neither a prima facie case nor pretext.
Id. at 350. As to the  pre-1993 claims of discrimination, the district
court found  that Cones had failed timely to file an EEO complaint.
Id. at  346-47. Cones moved for reconsideration of the dismissal of 
his claims related to the ASC Director position. The district  court
denied the motion.


Cones appeals only the district court's grant of summary  judgment with
respect to the ASC Director position. Our  review is de novo. See Tao
v. Freeh, 27 F.3d 635, 638 (D.C.  Cir. 1994) ("Our review of the grant
of summary judgment is  de novo, applying the same standards as the
district court").


II


Title VII of the Civil Rights Act of 1964, as amended,  makes it
unlawful for the federal government to discriminate  in employment on
the basis of race. 42 U.S.C. s 2000e-16.  Where, as here, the record
contains no direct evidence of  discrimination, we employ the familiar
burden shifting frame-  work of McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802  (1973). See Brown v. Brody, No. 97-5347, slip op. at
8-9  (D.C. Cir. Dec. 21, 1999) (McDonnell Douglas test applies to 
federal employees' Title VII claims). To establish a prima  facie
case, the plaintiff must show that (1) he is a member of a  protected
class; (2) he applied for and was qualified for an  available
position; (3) despite his qualifications he was reject-  ed; and (4)
either someone not of his protected class filled the  position or the
position remained vacant and the employer  continued to seek
applicants. See McDonnell Douglas, 411  U.S. at 802; Kolstad v.
American Dental Association, 108  F.3d 1431, 1436 (D.C. Cir. 1997),
rev'd in part on other  grounds en banc, 139 F.3d 958 (D.C. Cir.
1998), en banc  opinion vacated, 119 S. Ct. 2118 (1999). Of particular
signifi-  cance to this case, the burden of establishing a prima facie


case "is not onerous." Texas Dept. of Community Affairs v.  Burdine,
450 U.S. 248, 253 (1981). Its function is limited to  eliminating the
two most common nondiscriminatory reasons  for a plaintiff's
rejection: "an absolute or relative lack of  qualifications or the
absence of a vacancy in the job sought."  International Bhd. of
Teamsters v. United States, 431 U.S.  324, 358 n.44 (1977).
"Elimination of these reasons for the  refusal to hire," the Supreme
Court has explained, "is suffi-  cient, absent other explanation, to
create an inference that  the decision was a discriminatory one." Id.
With this stan-  dard in mind, we turn to the facts of this case.


In granting summary judgment for HHS, the district court  held that in
order to establish a prima facie case, it was not  sufficient for
Cones to have demonstrated that a white person  had been selected for
the position. The district court re-  quired Cones to show that a
white person had been promoted  to the position. Cones, 945 F. Supp.
at 349. Because Dodd  had been laterally transferred into the
position--i.e., not  promoted--the district court concluded that Cones
had failed  to establish a prima facie case. Id. We agree with Cones 
that this ruling adds undue weight to his relatively light  prima


The district court, as well as HHS in defending the district  court's
action, seems to have conflated two different types of  promotion
cases. One concerns employees like Cones who  claim to have been
denied promotions to vacant positions. In  such cases, the relevant
inquiry is controlled by the precise  terms of McDonnell Douglas: Was
the plaintiff rejected for  the position and a person outside of his
protected class  selected? As we said in Kolstad, "[w]here sex
discrimination  in promotion is alleged, a plaintiff proves her prima
facie case  by showing that she is female, that she was refused a
position  for which she applied and was qualified, and that the
employ-  er filled the position with a male." 108 F.3d at 1436. See 
also Barbour v. Merrill, 48 F.3d 1270, 1276 (D.C. Cir. 1995).


The other type of promotion case involves employees de-  nied increases
in pay or grade. In such cases, the traditional  McDonnell Douglas
test does not fit. As we explained in 


Bundy v. Jackson, 641 F.2d 934, 951 (D.C. Cir. 1981), a case  in which
the plaintiff sought an increase in her grade based  on years of
employment, "the literal McDonnell formula ...  designed for a claim
of discriminatory refusal to hire ... does  not precisely apply to a
claim, like Bundy's, of discriminatory  refusal to promote." Id. We
therefore "adjust[ed] the  McDonnell formula" to ask whether a
similarly situated  person outside of Bundy's protected class
requested and  received the benefit she sought. Id.


In this case, the district court erred by applying the Bundy  test,
designed expressly for denials of pay or grade increases,  to Cones'
McDonnell Douglas-controlled non-selection claim,  where the only
relevant question is whether Cones was  rejected for the position and
a white person selected. It  matters not whether the person ultimately
selected was pro-  moted to that position, hired from a pool of
outside candi-  dates, or, as in this case, laterally transferred.
Requiring  plaintiffs like Cones to establish that a similarly
situated  person had been promoted into the position would create a 
truly anomalous situation. An agency hiring an external  candidate
would be liable under Title VII only to other  external candidates
that it failed to hire. An internal candi-  date seeking a promotion
to that position could never estab-  lish a prima facie case because
the person selected would not  have been promoted to the position.
Surely the McDonnell  Douglas prima facie showing was not intended to


Nothing in Johnson v. Brock, 810 F.2d 219 (D.C. Cir. 1987),  requires a
different result. Although Johnson, a non-  selection case, did
include a citation to Bundy, the only part  of the prima facie case
the Court discussed was whether the  plaintiff had "applied" for the
position, an element of both the  Bundy and McDonnell Douglas
formulations. Id. at 225.  Johnson, moreover, predates our clear
statements in Kolstad  and Barbour that plaintiffs in non-selection
cases need show  only that they applied for the vacant position and
that a  person not of their protected class was selected.


Having concluded that the district court erred in requiring  Cones to
show that a similarly situated white person had been  promoted to the
position, we consider whether Cones has  established the elements of a
prima facie case. It is undis-  puted that Cones is African American
and that a white person  was selected for the ASC Director position.
HHS argues  that because it never opened the ASC Director position for
 competition, Cones cannot establish either that he was quali-  fied
for the position or that he applied for it. We disagree on  both
counts.


First the qualification issue. Cones complains that HHS  refused to
consider him for the position despite his substan-  tive
qualifications. HHS does not challenge Cones' substan-  tive
qualifications, and for good reason: Cones served in the  position for
four months, received positive evaluations, and,  according to
abundant record evidence, was familiar with the  job's duties. Indeed,
at oral argument, HHS's counsel con-  ceded that the testimony of
every witness "is that [Cones]  was substantively qualified had the
position been advertised."  Instead, HHS maintains, Cones cannot
establish a prima facie  case because he was not "technically"


If accepted, HHS's theory of "qualification" would open a  potential
loophole in Title VII. Agencies seeking to prevent  minority employees
from advancing to higher level positions  could simply refuse to open
those positions to competition and  instead laterally transfer
non-minorities. Agency employees  would be unable to mount Title VII
cases because none would  be "technically" qualified. Nothing in Title
VII or McDon-  nell Douglas supports such a counterintuitive result.


This does not mean that the relative qualifications of Cones  and Dodd
are irrelevant. To the contrary, their qualifications  and the role
those qualifications played in HHS's decision to  select Dodd over
Cones relate quite directly to the ultimate  question that a jury will
face: whether HHS discriminated  against Cones when it selected Dodd
for the position. For  purposes of the prima facie case, however, it
is sufficient that  Cones has established that he was substantively
qualified and 


that HHS selected a white person. See St. Mary's Honor  Center v.
Hicks, 509 U.S. 502, 509-10 (1993) (if "reasonable  minds could differ
as to whether a preponderance of the  evidence establishes the facts
of a prima facie case, then a  question of fact does remain, which the
trier of fact will be  called upon to answer"); Barbour, 48 F.3d at
1276 (issue of  qualification was question of fact for jury where "the
jury  reasonably could have determined, from the evidence before  it
... that Barbour was qualified and that private sector  experience was
not an absolute prerequisite"); Mitchell v.  Baldrige, 759 F.2d 80, 85
n.3 (D.C. Cir. 1985) ("the initial  responsibility of explaining the
relative qualifications of the  plaintiff and the selectee" lies with
the defendant, not with  the plaintiff as part of his prima facie


The Department's second argument--that Cones failed to  apply for the
job--requires little discussion. According to  HHS, Cones cannot
establish that he applied for the position  because ASMB never opened
the position to competition.  Yet HHS concedes that Cones "applied"
for the position in  precisely the same way as did Margaret Dodd: he
expressed  his interest to Elizabeth James, the Deputy Assistant
Secre-  tary who assisted Apfel with management of ASC. If Marga-  ret
Dodd could get the position by expressing her interest to  Elizabeth
James, Cones can certainly establish a prima facie  case by
demonstrating that he did precisely the same thing.  See, e.g., EEOC
v. Metal Service Co., 892 F.2d 341, 348 (3d  Cir. 1990) ("Courts have
generally held that the failure to  formally apply for a job opening
will not bar a Title VII  plaintiff from establishing a prima facie
case of discriminatory  hiring, as long as the plaintiff made every
reasonable attempt  to convey his interest in the job to the
employer."); Holsey v.  Armour & Co., 743 F.2d 199, 208-09 (4th Cir.
1984); Grant v.  Bethlehem Steel Corp., 635 F.2d 1007, 1016 (2nd Cir.


III


Turning to the remaining steps of the McDonnell Douglas  analysis, we
ask first whether HHS has rebutted the prima 


facie case's inference of discrimination by producing evidence  of a
legitimate, non-discriminatory reason for not selecting  Cones. See
McDonnell Douglas, 411 U.S. at 802. We agree  with the district court
that HHS met its burden. The agency  offered evidence that it selected
Dodd to serve as ASC  Director because it was in the midst of
downsizing, at least  partially in response to Executive Order


The only remaining issue, then, is whether Cones produced  sufficient
evidence from which a jury could infer that HHS's  downsizing
rationale was actually pretext for discrimination.  See McDonnell
Douglas, 411 U.S. at 804; Aka v. Washington  Hospital Center, 156 F.3d
1284, 1289 (D.C. Cir. 1998) (en  banc). We think that he has.


As an initial matter we must deal with the government's  argument that
Cones cannot establish discriminatory motiva-  tion because, although
Apfel made the final decision to trans-  fer Dodd, Cones alleged that
it was James who harbored  discriminatory intent. The government
relies on Hall v.  Giant Food, Inc., 175 F.3d 1074 (D.C. Cir. 1999),
but then  ignores several key distinctions between that case and this 
one. See also Holbrook v. Reno, Case No. 98-5462, 1999 WL  1065159 at
*4-5 (D.C. Cir. Nov. 26, 1999). For one thing,  unlike in both Hall
and Holbrook, where the plaintiffs had  offered "no evidence" to
establish that the person with the  alleged discriminatory animus "was
even involved in the  decisionmaking process," Hall, 175 F.3d at 1079,
or "partici-  pated in" the adverse decision, Holbrook, 1999 WL
1065159 at  *4, the record here is replete with evidence of James'
involve-  ment in the hiring decision. Asked about this at oral argu- 
ment, HHS's counsel conceded, "[a]bsolutely, no question  about it"
that James was "actively involved" in the decision to  transfer Dodd.
More fundamentally, the plaintiff in Hall  offered no evidence of
pretext--his entire case rested on a  single allegedly discriminatory
comment by a person uncon-  nected to the challenged employment
decision. In contrast,  Cones has offered sufficient evidence of


To begin with, as Cones points out, Apfel never asserted  that Dodd was
selected for the position because of downsizing 


or because she was a GS-15. Although Apfel testified that  laterally
transferring Dodd "was certainly consistent with the  overall
philosophy of hire from within, try to keep as few new  GS-14s or 15s
in the organization" and that downsizing  "permeated how we did
everything in the organization," he  recalled no conversation in which
downsizing was discussed as  a reason to hire Dodd. Nor can we find
any evidence in the  record that Apfel considered whether laterally
transferring  Dodd would result in the elimination of her former
position.  If HHS really selected Dodd because it was downsizing and 
seeking to eliminate a GS-15 position, wouldn't Apfel have  wanted to
know whether the position that Dodd was vacating  would be eliminated
or whether he would have to hire another  GS-15 to fill that


To be sure, were this Cones' only evidence, it might well be 
insufficient for a jury to conclude that HHS's downsizing  rationale
was not just pretext, but pretext for discrimination.  Aka, 156 F.3d
at 1291 ("in some instances ... the fact that  there are material
questions as to whether the employer has  given the real explanation
will not suffice to support an  inference of discrimination"). Cones,
however, has provided  more. During the ten months immediately
following the  issuance of the Executive Order and preceding Dodd's
trans-  fer, the record shows that ASMB promoted three white  GS-14s
to GS-15. From this evidence, a jury could conclude  that downsizing
did not prevent HHS from promoting white  GS-14s and that the
Department's assertion that downsizing  was the reason it did not
consider Cones was a lie. As we  said in Aka: "If the jury can infer
that the employer's  explanation is not only a mistaken one in terms
of the facts,  but a lie, that should provide even stronger evidence
of  discrimination.... The jury can conclude that an employer  who
fabricates a false explanation has something to hide; that 
'something' may well be discriminatory intent." Id. at 1293.


HHS argues that the three white GS-14s were not similar-  ly situated
to Cones because they had been serving in acting  capacities in the
positions to which they were promoted.  Perhaps so, but this
explanation is hardly conclusive at this  stage of the litigation.
Although the evidence could well 


persuade a jury that no discrimination had occurred, a jury  could just
as easily infer that the alleged differences between  Cones and the
white GS-14s were irrelevant, or that they  were themselves the
product of discrimination since the De-  partment had failed to
permanently promote Cones to ASC  Director when he was serving in an
acting capacity.


The text of the Executive Order may also provide a jury  with a basis
for concluding that HHS's asserted concern with  downsizing was
pretext for discrimination, particularly when  considered in
combination with the promotion of the three  white GS-14s. Although
the Executive Order clearly re-  quires HHS to reduce the number of
upper-level positions, it  does not differentiate between eliminating
GS-14 and GS-15  positions. See Executive Order 12,839, 58 Fed. Reg.
8515. It  provides only that "[a]t least 10 percent of the reductions 
shall come from the Senior Executive Service, GS-15 and GS-  14 levels
or equivalent." Id. HHS says it selected Dodd  because by laterally
transferring her and eliminating her  former GS-15 position, the
agency would be contributing to  the Executive Order's downsizing
goal. Possibly, but the  agency could also have complied with the
Executive Order by  promoting Cones and leaving his former GS-14
position va-  cant. HHS may well be able to convince a jury, as it did
the  district court, that it reasonably interpreted the Executive 
Order to require it to reduce the number of GS-15s. The  availability
of a textually obvious alternative interpretation,  however, is
evidence from which a jury could infer that HHS  deliberately misread
the Executive Order to favor Dodd  because it preferred not to promote


HHS points to evidence of actual downsizing, including that  it
promoted far greater numbers of employees prior to the  issuance of
the Executive Order. But Cones does not dispute  that the agency was
downsizing; the critical question is what  motivated the Department's
decision not to promote Cones--  downsizing or discrimination. Because
the record contains  evidence that downsizing had not prevented the
Department  from promoting white GS-14s, a jury could conclude that 
downsizing was pretext for discrimination.


In the "Statement of Facts" portion of its brief, HHS  mentions that in
1993 it selected three African Americans for  GS-15 positions, two by
promotion and one through initial  hire. Yet HHS neither explains the
significance of these  personnel actions to its theory of the case nor
refers to them  anywhere else in its brief. Asked about this at oral
argu-  ment, HHS counsel said, "I think this might be in er- 
ror....because my recollection does not comport with that  being a
1993 date." As HHS's post-hearing submission indi-  cates, its brief
in fact was mistaken. Only one African  American was promoted or hired
as a GS-15 in 1993, and, as  Cones' counsel points out, that one
African American was  promoted by the Undersecretary of HHS, not by


This is not a case in which the plaintiff "has created only a  weak
issue of material fact as to whether the employer's  explanation is
untrue, and there is abundant independent  evidence in the record that
no discrimination has occurred."  Aka, 156 F.3d at 1291. Not only has
Cones provided evi-  dence that raises serious questions about the
role of downsiz-  ing, but the Department has provided little if any
record  evidence that no discrimination occurred. As in Aka, this 
case ultimately turns on witness credibility. HHS's downsiz-  ing
explanation presents a question of fact that is as "quintes- 
sentially one for the finder of fact" as was the employer's  claim in
Aka that the plaintiff was not "enthusiastic." Id. at  1298-99.


IV


This brings us finally to Cones' retaliation claim. He  alleges that
HHS refused to allow him to compete for the  ASC Director position as
retaliation for his having filed EEO  complaints. In evaluating this
claim, we again apply a  burden-shifting mechanism: the plaintiff must
first establish  a prima facie case; if he meets that burden, the
employer  must articulate a legitimate non-retaliatory reason for its 
action; finally, the plaintiff has the ultimate burden of estab- 
lishing that the reason asserted by the employer is pretext  for
retaliation. See Berger v. Iron Workers Reinforced Rod-  men Local
201, 843 F.2d 1395, 1423 (D.C. Cir. 1988). The 


district court concluded that Cones had failed to establish a  prima
facie case of retaliation and that, even if he had, he  failed to
establish that HHS's non-retaliatory reason for  laterally
transferring Dodd was pretext for retaliation. Again  we disagree.


We have described the elements of a prima facie case of  retaliation as
follows: the plaintiff must establish that he  engaged in activity
protected by Title VII, that the employer  took an adverse employment
action against him, and that the  adverse action was causally related
to the exercise of his  rights. See Paquin v. Federal Nat'l Mortgage
Ass'n, 119  F.3d 23, 31 (D.C. Cir. 1997). HHS concedes that Cones 
engaged in protected activity when he filed informal and  formal
discrimination complaints, but it disputes Cones' asser-  tion that he
has established the other two elements.


As to the first element--whether HHS took an adverse  employment action
against Cones--it is undisputed that the  Department refused to allow
Cones to compete for the ASC  Director position. HHS argues that only
employment actions  of "some significance," such as hiring, firing, or
promotion,  are actionable under Title VII. A decision not to
competitive-  ly advertise a position, it asserts, is not actionable.
But even  assuming that only hiring, firing, and promotion decisions
can  give rise to Title VII liability, the crux of Cones' complaint is
 that refusing to allow him to compete for the promotion was 
tantamount to refusing to promote him. Furthermore,  HHS's narrow
definition of adverse employment action con-  flicts with our
precedent. As we just recently recognized, "no  particular type of
personnel action [is] automatically excluded  from serving as the
basis of a cause of action" under Title  VII, as long as the plaintiff
is "aggrieved" by the action.  Brown, slip op. at 13-14; see also
Passer v. American  Chemical Society, 935 F.2d 322, 331 (D.C. Cir.
1991) (action  for retaliation under parallel retaliation provision of
the Age  Discrimination in Employment Act is not limited "only to acts
 of retaliation that take the form of cognizable employment  actions
such as discharge, transfer or demotion"). Unable to  dispute that its
refusal to compete the position adversely 


affected Cones, HHS cannot legitimately contend that it took  no
adverse personnel action against him.


The Department next argues that Cones failed to demon-  strate a causal
connection between the filing of his discrimina-  tion complaint and
the refusal to consider him for the ASC  Director position. We agree
with Cones, however, that given  the circumstances of this case the
close temporal proximity of  his discrimination complaints to the
refusal to consider him  for the ASC Director position is sufficient
to establish a  causal connection. See Mitchell, 759 F.2d at 86 ("The
causal  connection component of the prima facie case may be estab- 
lished by showing that the employer had knowledge of the  employee's
protected activity, and that the adverse personnel  action took place
shortly after that activity."). Elizabeth  James, the Deputy Assistant
Secretary who actively partici-  pated in the decision to fill the
position non-competitively,  knew that Cones had filed a
discrimination complaint. More-  over, at the same time HHS was
deciding not to open the  ASC Director position for competitive
promotion, an EEO  counselor was investigating Cones' informal
discrimination  complaint, and Cones was filing formal complaints of


Having determined that Cones has established a prima  facie case of
retaliation, we again consider HHS's evidence of  a legitimate reason
for transferring Dodd into the position--  downsizing--and conclude
that HHS has met its burden of  production. But for the reasons stated
above, we also con-  clude that Cones has produced evidence from which
a jury  could conclude that downsizing was pretext for retaliation. 
Like Cones' discrimination claim, his retaliation claim raises 
genuine issues of material fact that on this record may not be 
resolved on summary judgment.


V


The judgment of the district court is reversed, and the case  is
remanded for further proceedings consistent with this  opinion.


So ordered.