181 F.3d 1342 (D.C. Cir. 1999)
Joyce A. Barbour, Appelleev.Carol M. Browner, Administrator, United States Environmental Protection Agency, Appellant
No. 98-5408 Consolidated with No. 98-5409
United States Court of AppealsFOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 12, 1999Decided July 13, 1999

Appeals from the United States District Court for the District of Columbia(No. 94cv00208)(No. 95cv02013)
Michael J. Ryan, Assistant U.S. Attorney, argued the  cause for appellant.  With him on the briefs were Wilma A.
Lewis, U.S. Attorney, and R. Craig Lawrence, Assistant U.S.  Attorney.
Janet Cooper argued the cause and filed the brief for  appellee.
Before:  Silberman, Ginsburg, and Tatel, Circuit Judges.
Opinion for the Court filed by Circuit Judge Ginsburg.
Opinion concurring in part and dissenting in part filed by  Circuit Judge Tatel.
Ginsburg, Circuit Judge:


1
Joyce Barbour sued the Environmental Protection Agency under Title VII of the Civil Rights  Act of 1964, 42 U.S.C. § 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 hence reverse.

I. Background

2
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 Sellers 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 commensurate 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.


3
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 Peterson had were of a sort usually assigned to a GS-14, not to a  GS-13, employee.


4
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 effective.


5
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

6
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 determinations 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 appellate courts are to maintain control of, and to clarify, the  [governing] legal principles");  Bose Corp. v. Consumers Union 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 requires us to review jury findings on two mixed questions of  law and fact, and we have not previously addressed the  standard of review applicable to either.

A.Failure to Promote

7
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 judgment about which aspects of her employment situation were "relevant."  The issue does not seem to be of general importance, peculiarly in need of clarification, or otherwise deserving 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. 506, 512 (1995).


8
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 performed the duties of a GS-13 level job.


9
Barbour does not deny these differences;  rather, she maintains 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 important 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 repeating, does not authorize a federal court to become "a  super-personnel department that reexamines an entity's business 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.


10
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 explanation 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 promotion, 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 productivity would accompany a five-fold increase in experience.**


11
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.


12
While we usually afford "considerable ... significance" to  evidence showing that an employer's explanation of a challenged 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 inexplicable.  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 statements regarding the importance of a desk audit are not  merely incorrect, but intentionally deceitful, then this difficulty could perhaps be overcome.  See id. at 1289 n.3 (term  "pretext ... sometimes ... means that an employer's explanation 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 indicative of bias if it supports a reasonable "suspicion of mendacity").  Evidence that the EPA invoked the desk audit requirement 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 discriminatory 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 identical, 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 deceive).


13
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 comparison 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 probative value, we conclude that the district court should have  granted the EPA's motion for judgment as a matter of law.

B.Harassment

14
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 complains 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 becomes "hostile" for the purposes of Title VII only when  offensive conduct "permeate[s] [the workplace] with discriminatory 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 (1998).


15
Whether the harassment in a particular case can be considered "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 harassment 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 employers alike.  On the other hand, because harassment cases  tend to be intensely fact-specific, a judicial determination that  particular offensive conduct was or was not "severe or pervasive" 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).


16
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 supervisor'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 environment).


17
Barbour tries to fill the hole in her case by pointing to  testimony that CBSI employees were habitually uncooperative 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:  treatment 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 behavior 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 claim as well.

III. Conclusion

18
For the foregoing reasons, the judgment of the district  court is


19
Reversed.



Notes:


*
 There is not a scintilla of evidence in the record to suggest that  the EPA--as opposed to Barbour--regarded the difference as  irrelevant.  Our dissenting colleague contends that a rational juror  could find Peterson's additional job duties immaterial because Sellers 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 productivity will come to outweigh the limited scope of her responsibilities.



20
Tatel, Circuit Judge, concurring in part and dissenting in  part:


21
This court's opinion leaves no doubt which way my colleagues 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.


22
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 jurors'.  Because both sides were entitled to have this discrimination dispute resolved by the jury, see 42 U.S.C.  § 1981a(c)(1) (1994), I respectfully dissent.

Failure to Promote

23
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, 179 F.3d 929 (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 advantage 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."  Hayman 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.


24
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.


25
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.


26
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 description.  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.


27
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 year:


28
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 through out the year, as time went on, he constantly reminded me of that.


29
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.


30
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 earlier 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 employee'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 description.  See id.  Although this process often includes a desk audit--where the personnel officer sits down with the employee 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.


31
Two months after her performance review, Barbour testified, 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 McClean and OPM confirmed that he had authority to waive the  desk audit requirement, Sellers asked her to write a memorandum justifying her promotion to GS-13.  See id. at 49.


32
In response, Barbour prepared a memorandum dated February 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 performing.  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 position description.  See Trial Tr. 3/19/97 at 161.


33
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 concluding 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 memorandum listed seven specific duties that, if Barbour began performing, 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.


34
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 experiences 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.


35
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.  Assuming the role of jurors, however, my colleagues disregard  Barbour's evidence that EPA's desk audit justification was  false, concluding instead that the justification could not have been "intentionally deceitful" because EPA applied the putative 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 hypothetical situations in which no reasonable juror could infer discrimination 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 justification 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 relationship 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  p. 11.


36
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 evidence 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 the falsity of that justification merely by asserting that it has denied promotion to a  white employee for the same reason.


37
EPA next argues that no reasonable juror could have found  race discrimination based on a comparison between the experiences 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 colleagues that Barbour in fact took over seven out of eight?


38
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 functions, 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 adequately 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 believed 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.


39
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.


40
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, and not at oral argument.


41
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 51.


42
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 functions, 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. 1351-52.  This  case is thus just like Aka.  There, as here, the record  contained evidence from which a reasonable juror could conclude that the challenged employment decision was inexplicable 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 inference of discrimination."  156 F.3d at 1292.


43
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 employer introduced evidence that one was more polite or better  read than the other, so long as the record reasonably supported the conclusion that politeness or erudition were not  relevant promotion criteria.  The record in this case amply  supports the jury's apparent conclusion that Barbour was similarly situated to Peterson in all respects relevant to the  GS-13 position.


44
Also missing from the court's Aka discussion is any mention of the fact that in addition to Barbour's evidence that she  and Peterson were similarly situated with respect to the GS13 position, and in addition to her evidence that each of  EPA's proffered justifications was pretextual, Barbour testified that EPA has a poor equal employment opportunity  record with respect to African-Americans in her division:


45
The history of the program has been that minorities have been pretty much on the lower end of it.  Out of400 to 500 staff people, you only have, I'd say, maybe two section chiefs who were at the 14 level.  One was temporary.  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.


46
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 n.11.


47
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

48
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 intimidation, ridicule, and insult that [was] sufficiently severe or  pervasive to alter the conditions of [her] employment and  create an abusive working environment.' "  Oncale v. Sundowner Offshore Services, Inc., 118 S. Ct. 998, 1001 (1998)  (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)).


49
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 following:


50
[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.


51
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 verdict.


52
The District Court's Comments on the Evidence


53
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 nonetheless entitled to a new trial because the district court prejudiced 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.


54
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 uncontrolled, 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 Quercia, 289 U.S. at 470).


55
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 district judge said this:Let me just give you the reason why I overruled your objection.  As far as I am concerned, in these discrimination 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 there cords;  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 court, 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 not.


56
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 Congress 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.


57
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 witnesses."  134 F.3d 414, 416 (D.C. Cir. 1998).


58
District judges certainly enjoy wide discretion to manage  trials, including questioning witnesses aggressively and commenting on the evidence.  In fact, most of the judge's comments 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.

