199 F.3d 512 (D.C. Cir. 2000)
Kenneth L. Cones, Appellantv.Donna E. Shalala, Secretary, Department of Health & Human Services, Appellee
No. 97-5093
United States Court of AppealsFOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 5, 1999Decided January 4, 2000

[Copyrighted Material Omitted]
Appeal from the United States District Court for the District of Columbia(No. 96cv00701)
Roland G. Schroeder argued the cause for appellant. With  him on the briefs was William D. Hopkins.
Diane M. Sullivan, Assistant U.S. Attorney, argued the  cause for appellee. With her on the brief were Wilma A.  Lewis, U.S. Attorney, and R. Craig Lawrence and Kimberly  N. Brown, Assistant U.S. Attorneys.
Before:  Williams, Ginsburg and Tatel, Circuit Judges.*
Opinion for the Court filed by Circuit Judge Tatel.
Tatel, Circuit Judge:


1
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 government.


2
* 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 Telecommunications, 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 promotions but was never selected.  Each time HHS filled the  position with a white person.


3
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 Administrative 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 Acting Director of ASC.  Although the new position was  rated GS-15 and Cones was still a GS-14, personnel regulations permitted Tompkins to detail Cones to the position for  up to 120 days without using the competitive selection process.  See 5 C.F.R. § 335.103(c)(1)(ii).  Tompkins testified  that he detailed Cones to the Acting Director position because ASMB had been criticized for having a poor EEO  record and also because he thought Cones deserved an opportunity to enhance his skills.


4
A month and a half into Cones' detail, the 1992 Presidential  election occurred.  An appointee of President Bush, Tompkins knew that his tenure as Assistant Secretary would soon  end, so he decided that it would be "inappropriate" to advertise 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 Employment Opportunity Office.  Although the EEO Counselor  recommended reinstating Cones to the ASC Director position,  HHS refused.  Cones then filed a formal complaint of discrimination, to which he later added a retaliation claim based  on the Department's failure to consider him for a different  acting director position.


5
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 February 10, President Clinton issued an Executive Order establishing a goal of eliminating 100,000 federal government positions.  See Executive Order No. 12,839, 58 Fed. Reg. 8515  (1993).  In relevant part, the Executive Order reads as  follows:


6
Each executive department or agency with over 100employees 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.


7
Id.


8
Several months later, President Clinton's nominee for Assistant 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 renewed, 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 advertising the position.  See 5 C.F.R. § 335.103(c)(3)(v).  This  HHS did on December 12.


9
Cones then amended his still-pending EEO complaint, adding 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.


10
Granting summary judgment for the Department, the district 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.


11
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

12
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. § 2000e-16.Where, as here, the record contains no direct evidence of  discrimination, we employ the familiar burden shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802  (1973).  See Brown v. Brody, No. 97-5347, 199 F.3d 446  (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 rejected;  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 significance 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 sufficient, absent other explanation, to create an inference that  the decision was a discriminatory one."  Id.  With this standard in mind, we turn to the facts of this case.


13
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 required 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 facie burden.


14
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 employer 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).


15
The other type of promotion case involves employees denied 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.


16
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 promoted to that position, hired from a pool of outside candidates, 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 candidate seeking a promotion to that position could never establish 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 create this  absurd outcome.


17
Nothing in Johnson v. Brock, 810 F.2d 219 (D.C. Cir. 1987),  requires a different result.  Although Johnson, a nonselection 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.


18
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 undisputed 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 qualified for the position or that he applied for it.  We disagree on  both counts.


19
First the qualification issue.  Cones complains that HHS  refused to consider him for the position despite his substantive qualifications.  HHS does not challenge Cones' substantive 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 conceded 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" qualified insofar as he  was not a GS-15.


20
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 McDonnell Douglas supports such a counterintuitive result.


21
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 case).


22
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 Secretary who assisted Apfel with management of ASC.  If Margaret 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. 1980).

III

23
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 12,839.


24
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.


25
As an initial matter we must deal with the government's  argument that Cones cannot establish discriminatory motivation because, although Apfel made the final decision to transfer 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, 196 F.3d 255, 260-61 (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 "participated in" the adverse decision, Holbrook, 196 F.3d at 260, the record here is replete with evidence of James' involvement in the hiring decision.  Asked about this at oral argument, 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 unconnected to the challenged employment decision.  In contrast,  Cones has offered sufficient evidence of pretext.


26
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 position?


27
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 transfer, 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.


28
HHS argues that the three white GS-14s were not similarly 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 Department had failed to permanently promote Cones to ASC  Director when he was serving in an acting capacity.


29
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 requires 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 GS14 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 vacant.  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 an African American.


30
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.


31
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 argument, HHS counsel said, "I think this might be in error....because my recollection does not comport with that  being a 1993 date."  As HHS's post-hearing submission indicates, 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 ASMB.


32
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 evidence that raises serious questions about the role of downsizing, 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 downsizing explanation presents a question of fact that is as "quintessentially 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

33
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 establishing that the reason asserted by the employer is pretext  for retaliation.  See Berger v. Iron Workers Reinforced Rodmen 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.


34
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' assertion that he has established the other two elements.


35
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 competitively 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 conflicts 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, 199 F.3d at 455;  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.


36
The Department next argues that Cones failed to demonstrate a causal connection between the filing of his discrimination 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 established 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 participated in the decision to fill the position non-competitively,  knew that Cones had filed a discrimination complaint.  Moreover, 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 both  discrimination and retaliation.


37
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 conclude 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

38
The judgment of the district court is reversed, and the case  is remanded for further proceedings consistent with this  opinion.


39
So ordered.



Notes:


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


