                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 10-2081


DENISE BURGESS,

                  Plaintiff – Appellant,

           v.

STUART W. BOWEN, JR., Special Inspector General for Iraq
Reconstruction,

                  Defendant – Appellee,

           and

PETE GEREN, The Honorable,        in   his   official   capacity   as
Secretary of the Army,

                  Defendant.

------------------------

METROPOLITAN WASHINGTON EMPLOYMENT LAWYERS ASSOCIATION,

                  Amicus Supporting Appellant



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. James C. Cacheris, Senior
District Judge. (1:09-cv-00763-JCC-JFA)


Argued:   December 8, 2011                   Decided:   February 17, 2012


Before TRAXLER, Chief Judge, and AGEE and DIAZ, Circuit Judges.
Vacated and remanded by unpublished opinion.    Judge Diaz wrote
the opinion, in which Chief Judge Traxler and Judge Agee joined.


ARGUED: Linda C. Bailey, STEPTOE & JOHNSON, LLP, Washington,
D.C., for Appellant.   Yiris E. Cornwall, OFFICE OF THE UNITED
STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF:
Harry Lee, John F. O'Connor, Michael J. Baratz, STEPTOE &
JOHNSON, LLP, Washington, D.C.; Susan E. Huhta, Emily B. Read,
THE WASHINGTON LAWYERS' COMMITTEE FOR CIVIL RIGHTS AND URBAN
AFFAIRS, Washington, D.C., for Appellant.    Neil H. MacBride,
United States Attorney, Kevin J. Mikolashek, Assistant United
States   Attorney,  OFFICE  OF   THE  UNITED  STATES  ATTORNEY,
Alexandria, Virginia, for Appellee.    Leslie D. Alderman III,
ALDERMAN, DEVORSETZ & HORA, PLLC, Washington, D.C.; Alan R.
Kabat, BERNABEI & WACHTEL, PLLC, Washington, D.C., for Amicus
Supporting Appellant.


Unpublished opinions are not binding precedent in this circuit.




                                2
DIAZ, Circuit Judge:

       Denise Burgess, an African American female, was terminated

from       her     executive-level        position          at      a    federal      agency,

purportedly due to a reorganization necessitated by budgetary

pressures.         The district court granted summary judgment to the

agency       on     Burgess’s         claims        alleging        discrimination          and

retaliation         based      on   her   termination         and       the     denial     of   a

transfer to another position within the agency.                                  Viewing the

record      evidence      in    the   light     most    favorable         to     Burgess,       we

conclude         that   granting      summary        judgment       to    the     agency    was

inappropriate.            Accordingly,         we    vacate      the     district     court’s

judgment and remand for further proceedings.



                                               I.

       We recite the facts, with reasonable inferences drawn, in

favor of Burgess, the nonmovant. 1

       Congress         created     the   office       of     the       Special     Inspector

General for Iraq Reconstruction (“SIGIR”) to oversee all U.S.-

funded reconstruction programs and projects in Iraq.                                Its chief

mission      is    to    provide      audit    and    oversight          of   the   use,     and

       1
           See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986).




                                               3
potential misuse, of the Iraq Relief and Reconstruction Fund,

and all expenditures associated with reconstruction activities

in Iraq.     SIGIR is also mandated to provide Congress quarterly

and semi-annual reports and maintains a separate Congressional

Affairs office to fulfill these responsibilities.                     Additionally,

SIGIR maintains an office of Public Affairs responsible for the

organization’s     external       communication.          Once    a     stand-alone

office, Public Affairs is now part of the agency’s Congressional

Affairs office.

      Since SIGIR’s inception, Stuart Bowen, Jr., has served as

the   head   of   the   agency.      In       January   2007,    Bowen    recruited

Burgess to join SIGIR as the Assistant Inspector General for

Public Affairs (“AIG-PA”) through March 2008. 2                   In this role,

Burgess served as “the principal staff advisor and expert in the

conduct of liaison with national and international news media,

other     collective    and   individual          stakeholders,        and   public

audiences for [SIGIR].”           J.A. 428.        In response to Burgess’s

request for an administrative assistant, SIGIR hired Patricia

Redmon, also an African American female, as a contract employee.

Although the functions of the Public Affairs office ostensibly




      2
       Because SIGIR is a limited-purpose, temporary agency, all
employees serve for a specified term.



                                          4
called for four full-time employees, Burgess and Redmon were the

office’s only employees during Burgess’s tenure.

     Following    a   brief   detail    to   the    U.S.   State   Department,

Ginger Cruz returned to SIGIR in February 2007 as a “Senior

Advisor.”    In June 2007, Cruz was restored to her former post as

Deputy   Inspector     General    for      Policy,    where    she   directly

supervised     Burgess.       According      to    Burgess,   Cruz   took    an

immediate dislike to her and began usurping Burgess’s authority

and duties and making discriminatory and harassing remarks.                 In

one such incident, Cruz “out of the blue” told Burgess that

“people who file discrimination complaints are weak links in the

chain . . . looking to excuse their own personal failing.”                  Id.

1350.    Burgess interpreted this comment as racial bias directed

against her specifically.        Burgess eventually raised the issue

of Cruz’s general hostility toward her with SIGIR’s Chief of

Staff Nick Arnston, alleging that Cruz was targeting her because

of her race.

     On July 19, 2007, Cruz notified Burgess that Redmon was to

be terminated in two weeks’ time.             Burgess responded that she

believed that she and Redmon were being targeted, and that the

Public Affairs section--then consisting solely of two African

American women--was being singled out for elimination.                Burgess

also expressed that it would be difficult for her to manage the

section’s workload without an assistant.              Cruz did not respond

                                       5
directly    to     Burgess’s      claim       that      she   and     Redmon      were    being

targeted, but did assure Burgess that she would have adequate

administrative support going forward.

      On July 23, Burgess sent an email to Cruz in which she

questioned       the     “fairness      and    equality”         of      the   decision      to

terminate Redmon.              Id. 305.       She asked to meet with Cruz to

discuss    the     matter.            Cruz    in     turn     contacted        Arnston       and

requested that he arrange a meeting between Cruz and Patrick

Bowers, SIGIR’s deputy general counsel.                          The purpose of that

meeting     was     to    discuss,       among       other      topics,        “EEO      [Equal

Employment Opportunity]” matters.                  Id. 1945.

      Later that day, Cruz notified Burgess in a meeting also

attended    by     Bowers      that    Burgess’s        AIG-PA       position      was    being

eliminated because of budget constraints.                        When Burgess pressed

for   a    more    detailed       explanation,           Cruz       responded      that     the

position     was       being    eliminated         as    part       of   a     budget-driven

reorganization         and     that    SIGIR       required      the      “right      mix    of

people.”     Id. 159.           Cruz resisted Burgess’s further inquiries,

and   informed         Burgess        that     she      was     to       remain     on      paid

administrative leave until September 1, 2007, although she was

not to return to work after July 27.                          Arnston later wrote to

Burgess and explained that she was being terminated “[d]ue to

the reorganization of the Office of Public Affairs.”                              Id. 386.



                                              6
        Separately, also on July 23, Cruz asked Arnston to draft a

position       description     for     a   new         Director    of     Public    Affairs

(“DPA”) position.           A former SIGIR employee, Kristine Belisle, a

white       woman,    was   selected    for       the    new    position,    even    though

performance          deficiencies      were       in    part     responsible       for     her

initial       departure      from    SIGIR        in    March     2007.      Cruz        later

explained that Belisle was hired over Burgess because the DPA

role required “someone who was able to do the heavy lifting, who

was not above making the phone calls, who was not above doing .

. . the day-to-day scheduling, management and callbacks.”                                 Id.

65. 3

        3
       Cruz admitted, however, that she might have been open to
hiring Burgess in another capacity had their July 23 meeting
gone differently.

        Q: But yet there could be no opportunity for [Burgess] to
        be the director of public affairs?

        A:    No.

        Q:    No opportunity anywhere else in the agency?

        A:    No.

        Q:    And no discussion whatsoever of other opportunities?

        A:    No.

        Q: However, had the conversation that you had on July 23rd
        gone differently, you may have been able to explore some
        opportunity?

        A: I would have spoken to her about it. I don’t know that
        we would have arrived at anything other than the decision
        we ended up with.
(Continued)
                                              7
       It was common practice in SIGIR to reassign employees who

were     terminated,         whether      through          a     “reorganization”        or

otherwise,       to    other      positions       within       the   agency.        Despite

Burgess’s laudable work--as evidenced by her receipt of a letter

of commendation for “exemplary service on the job” accompanied

by an $8500 cash reward on May 31, 2007, and a separate letter

from   Arnston        in   which    he   congratulated          Burgess   on    her     fine

performance--she was not offered another position in the agency.

       Burgess was the only African American member of SIGIR’s

senior     management        at    the   time,      the    only      member    of   senior

management to be involuntarily terminated, and the only SIGIR

employee terminated as part of the agency’s reorganization.

       After exhausting her administrative remedies, Burgess filed

a four-count complaint in the district court alleging violations

of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e

et seq., with respect to her termination and the denial of her

transfer    to    the      DPA    position    or    another      position      within   the

agency.     SIGIR moved for summary judgment, which the district

court granted.         Burgess timely appealed.




       Id. 1677.



                                              8
                                      II.

                                       A.

       We review de novo a grant or denial of summary judgment,

applying    the    same    standard   applied        by   the    district    court.

Overstreet v. Ky. Cent. Life Ins. Co., 950 F.2d 931, 938 (4th

Cir.   1991).      Summary    judgment       is   appropriate     only    where    the

record shows there is no genuine issue of material fact and the

moving party is entitled to judgment as a matter of law.                          Fed.

R.   Civ.   P.    56(c).      The   summary       judgment      inquiry   turns     on

“whether    the    evidence    presents       a   sufficient     disagreement      to

require submission to a jury or whether it is so one-sided that

one party must prevail as a matter of law.”                  Anderson, 477 U.S.

at 251-52.       Only in the latter case may the court grant summary

judgment, but a jury must resolve the dispute if the evidence

permits either of two reasonable conclusions.                   Id. at 250-51; In

re French, 499 F.3d 345, 352 (4th Cir. 2007).

       It is not the district court’s role to “weigh the evidence

and determine the truth of the matter” but instead to determine

whether there are “genuine factual issues that properly can be

resolved only by a finder of fact because they may reasonably be

resolved in favor of either party.”                Anderson, 477 U.S. at 250.

A district court considering a motion for summary judgment must

view the evidence in the light most favorable to the nonmoving

party, Unus v. Kane, 565 F.3d 103, 115 (4th Cir. 2009), and draw

                                         9
all inferences in favor of the nonmovant, Williams v. Griffin,

952 F.2d 820, 823 (4th Cir. 1991).

                                          B.

      A    three-step         framework       applies      to     the     resolution      of

discrimination and retaliation claims where, as here, there is

only circumstantial evidence.                  See McDonnell Douglas Corp. v.

Green, 411 U.S. 792, 802-04 (1973) (discrimination); Lamb v.

Boeing,    213     F.   App’x    175,   179     (4th      Cir.    2007)    (“Retaliation

claims function in parallel.”) (citing Beall v. Abbott Labs.,

130 F.3d 614, 619 (4th Cir. 1997)).                       First, the plaintiff has

the     initial     burden      to    prove     her       prima    facie     case    by     a

preponderance of the evidence, which she may do by “proving a

set of facts which would enable the fact-finder to conclude, in

the absence of any further explanation, that it is more likely

than not that the adverse employment action was the product of

discrimination [or retaliation].”                 Ennis v. Nat’l Ass’n of Bus.

& Educ. Radio, Inc., 53 F.3d 55, 58 (4th Cir. 1995) (citing

Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 254

(1981)).       If such a showing is made, the burden shifts to the

defendant to come forward with evidence that “if believed by the

trier     of      fact,       would   support         a    finding        that    unlawful

discrimination          [or    retaliation]      was       not    the     cause     of    the

employment action.”            Hicks, 509 U.S. at 507 (citing Burdine, 450

U.S. at 254-255).             If the defendant makes such a showing, the

                                          10
presumption created by the plaintiff’s prima facie case “drops

out of the picture,” and the burden shifts back to the employee

to present evidence from which a reasonable juror could find

that the proffered reason was a pretext for discrimination or

retaliation.      Id. at 511 (citing Burdine, 450 U.S. at 255).                     If

the   plaintiff      can   demonstrate      “that    the    legitimate       reasons

offered by the defendant were not its true reasons, but were a

pretext for discrimination [or retaliation],” summary judgment

is not appropriate.        Burdine, 450 U.S. at 253.

      The parties dispute whether the district court applied an

incorrect      standard     in     evaluating       Burgess’s     discrimination

claims.       Following the Supreme Court’s opinion in St. Mary’s

Honor Ctr. v. Hicks, 509 U.S. 502 (1993), many district courts

required      plaintiffs      to     provide        additional     evidence         to

demonstrate racial discrimination, once the burden shifted back

to the plaintiff after an employer’s proffer of a legitimate

nondiscriminatory reason for its action.                   This “pretext plus”

standard stemmed from the Court’s pronouncement that, after the

employer’s proffer, “[t]he plaintiff then has ‘the full and fair

opportunity     to   demonstrate,’     through      presentation       of    his   own

case and through cross-examination of the defendant’s witnesses,

‘that   the    proffered    reason    was   not     the   true   reason      for   the

employment     decision,’     and    that    race     was.”      Id.    at    507-08

(quoting Burdine, 450 U.S. at 256).

                                       11
      In Reeves v. Sanderson Plumbing Prods. Inc., 530 U.S. 133

(2000), the Supreme Court clarified that a prima facie case of

discrimination, combined with evidence from which a jury could

conclude that an employer’s proffered justification was false,

supported an inference of discrimination sufficient to defeat

summary judgment.         In other words, a plaintiff is not required

to provide additional evidence that race was the true reason for

the     employment      decision.        The   Court       further    explained     as

follows:

      Proof that the defendant’s explanation is unworthy of
      credence is simply one form of circumstantial evidence
      that is probative of intentional discrimination, and
      it   can  be   quite   persuasive.     In  appropriate
      circumstances, the trier of fact can reasonably infer
      from the falsity of the explanation that the employer
      is dissembling to cover up a discriminatory purpose .
      . . . Moreover, once the employer’s justification has
      been eliminated, discrimination may well be the most
      likely alternative explanation, especially since the
      employer is in the best position to put forth the
      actual reason for its decision.    Thus, a plaintiff’s
      prima facie case, combined with sufficient evidence to
      find the employer’s asserted justification is false,
      may permit the trier of fact to conclude that the
      employer unlawfully discriminated.

Id. at 147-48 (citations omitted).

      Reeves      did   allow,   however,      that    a   prima     facie   case   of

discrimination combined with evidence of pretext might fail to

sustain    a   jury’s     finding   of    liability,       in   unique   situations

where      “the      record      conclusively         revealed        some    other,

nondiscriminatory reason for the employer’s decision, or if the


                                          12
plaintiff created only a weak issue of fact as to whether the

employer’s      reason      was    untrue       and    there      was    abundant    and

uncontroverted independent evidence that no discrimination had

occurred.”       Id. at 148; accord Murrell v. Ocean Mecca Motel,

Inc., 262 F.3d 253, 258-59 (4th Cir. 2001) (“[O]nce a plaintiff

has established a prima facie case and shown the defendant’s

explanation      to    be     false,      the    plaintiff        need    not     submit

additional      evidence      of    discrimination           unless      ‘no    rational

factfinder could conclude that the action was discriminatory.’ ”

(quoting Reeves, 530 U.S. at 148)).

     Applying      the      McDonnell     Douglas       framework,       the    district

court found with respect to all four claims that Burgess either

failed   to    establish     a    prima   facie       case   of   discrimination      or

retaliation,      or     failed    to     demonstrate        pretext      after     SIGIR

provided      legitimate     nondiscriminatory          reasons.         The    district

court thus granted summary judgment to SIGIR on all four of

Burgess’s claims.         Burgess contests the district court’s ruling

on each claim, asserting that the district court (1) held her

discrimination claims to the “pretext-plus” standard the Supreme

Court rejected in Reeves and (2) erred in concluding that there

was no evidence to support a causal connection between Burgess’s

protected activity and the agency’s decision to both terminate

Burgess and deny her a transfer.                       We address each claim in

turn.

                                           13
                                         III.

                                            A.

      Burgess        first       contends        that     she     suffered        racial

discrimination when her AIG-PA position was terminated and when

a less qualified white woman was selected for the DPA position

created     in   its    place.      To   establish        a   prima    facie    case    of

discriminatory termination, a plaintiff must show that (1) she

is a member of a protected class; (2) she was qualified for her

job and her job performance was satisfactory; (3) in spite of

her qualifications and her performance, she was fired; and (4)

she   was   replaced     by    someone      outside     her   protected    class,      or

otherwise    treated      differently       than    similarly     situated      persons

outside the class.           See McDonnell Douglas, 411 U.S. at 802.                   The

district     court     characterized     the       last   prong   as    whether     “the

position remained open to similarly qualified applicants after

her dismissal.”         Burgess v. Bowen, No. 09-763, 2010 WL 3064307,

at *8 (E.D. Va. Aug. 2, 2010) (quoting Williams v. Cerberonics,

871 F.2d 452, 455-56 (4th Cir. 1989)).

      The district court held that Burgess had not established

her prima facie case.             Specifically, the court concluded that

Burgess was not replaced by someone outside her protected class

because the AIG-PA position had been eliminated and thereby did

not   remain     open    to    similarly     qualified        applicants       following

Burgess’s dismissal.           Further, the district court concluded that

                                            14
the new DPA position was not, contrary to Burgess’s assertion,

the functional equivalent of the AIG-PA position.                         As evidence

of this, the district court relied on certain differences in the

written descriptions of the positions and the responsibilities

thereunder.         The     district     court     further       accepted       SIGIR’s

contention    that    the     new    position     was    ministerial       in     nature

involving no management or supervision of employees, in contrast

to the autonomous managerial and policy functions of the AIG-PA

position.

      Neither     party     has     articulated    a    standard      by    which     to

properly assess whether a position remains open in the face of

some changes in the written job description.                      Both parties do,

however, draw our attention to Murray v. Gilmore, 406 F.3d 708,

714 (D.C. Cir. 2005), in which the D.C. Circuit concluded that

the   plaintiff     offered       “plentiful    evidence       from   which     a   jury

could   conclude     that    rather     than    functionally      eliminating         the

[plaintiff’s position], [the defendant] simply gave the position

a new title and tapped [someone else] to hold it.”                         That case

offers us little guidance, however, because the defendant there

acknowledged      that    the     two   positions       had    “comparable,         dual,

functionally       equivalent,        overlapping       responsibilities,”           and

admitted    that     “a   reasonable      jury    could       conclude     that     [the

defendant’s     proffer]     was     pretext.”      Id.       (internal    quotations

omitted).     There has been no such admission here, nor does a

                                         15
straightforward          comparison          of     the    written       job    descriptions

clearly indicate whether or not the positions are functionally

equivalent.

       We accept the district court’s premise that there may be

circumstances in which the differences between two written job

descriptions are so stark such that it cannot be said that “the

[first]           position      remained          open      to      similarly        qualified

applicants,” Burgess, 2010 WL 3064307, at *8.                                  In this case,

however, the district court failed to credit Burgess’s evidence

tending       to     show      that    the        positions       were    intended        to     be

functionally          equivalent        and        that     both       involved     the        same

managerial and oversight responsibilities.

       Specifically, Cruz initially sought to hire Belisle under

the identical title, responsibilities, and salary as enjoyed by

Burgess, but shifted gears after being alerted that her proposal

was    inconsistent          with     the   agency’s       contention       that     Burgess’s

position was eliminated because of a reorganization.                                Only then

did    the    agency     revise       the    description,          responsibilities,            and

salary       of    the   DPA    position.              Despite    the    changes,     however,

Belisle testified that, as the DPA, she in fact “was the sole

person managing public affairs, in the sense that [she] was the

sole    person        implementing          the    skills        and    activities    of        the

position.”          J.A. 1260.         The new DPA position also involved the



                                                  16
supervision of a support staff member who split time with Public

Affairs and another department.

     Because the district court failed to view this evidence in

the light most favorable to Burgess, it erred in finding that

Burgess had not established her prima facie case.                           Indeed, the

transfer    of    most    of     the      AIG-PA     responsibilities      to   the    DPA

position was, in our view, itself sufficient to meet Burgess’s

burden.         See    Gallo     v.       Prudential     Residential      Servs.,     Ltd.

P’ship, 22 F.3d 1219, 1225 (2d Cir. 1994) (holding that the

plaintiff     established        a     prima    facie    case   where     the   employer

reassigned       almost    all       of    plaintiff’s     duties    to    an   employee

outside    of    the     plaintiff’s         protected     class).        Although    the

district court found that the “AIG-PA position was eliminated”

and “reject[ed the contention] that it was merely ‘renamed’ as

the Director of Public Affairs,” Burgess, 2010 WL 3064307, at

*9, a reasonable jury could conclude otherwise.                           See Garcia v.

Pueblo Country Club, 299 F.3d 1233, 1239-41 (10th Cir. 2002)

(reversing summary judgment because whether plaintiff’s position

was eliminated or he was replaced was a “key” material factual

dispute).

     The    district       court’s         analysis     nevertheless      assumed     that

Burgess had established a prima facie case, but concluded that

SIGIR   had      provided      legitimate           nondiscriminatory      reasons     for

Burgess’s     termination:            that     budgetary    pressures      necessitated

                                               17
the elimination of Burgess’s position, that the entire Public

Affairs section was reorganized, and that other employees were

terminated         or     had       their        contract        positions        revoked.

Accordingly, the district court found that Burgess failed to

establish     that        SIGIR’s        reason     for      her        termination        was

pretextual.             Specifically,       the     district        court     held        that

“Plaintiff must show there is a genuine issue of material fact

regarding     a     connection       between        her    race     and     her    adverse

employment    action”       and     “Plaintiff       has    not    come     forward       with

evidence that these acts were motivated by race discrimination.”

Burgess, 2010 WL 3064307, at *11.

     Viewed in the light most favorable to Burgess, however, the

record     evidence       reveals        significant       inconsistencies           as     to

whether other employee or contract positions were eliminated as

part of a reorganization, whether budgetary pressures in fact

necessitated       the    elimination       of    Burgess’s       position,       when     the

decisions were made to execute any reorganization, whether the

Public   Affairs         section    was     actually       reorganized       to    promote

savings,     and    whether        the    elimination       of     Burgess’s      position

actually achieved any meaningful savings.                     Although the district

court was not persuaded by this evidence, the proper standard is

whether a reasonable jury could have found SIGIR’s proffered

explanation       incredible       and,     thus,    could       have    concluded        that

Burgess’s termination was discriminatory.

                                            18
        We hold that the district court erred in concluding, as a

matter of irrebuttable fact, that the AIG-PA position had been

eliminated and that the position created in its place was not

sufficiently similar to present that issue to the jury.                          Second,

the     court    failed        to    view     the    record     evidence      supporting

Burgess’s       challenges      to    the     credibility      of   SIGIR’s    proffered

explanation in the light most favorable to her, and thus failed

to apprehend that such evidence standing alone was sufficient to

show       pretext   after          SIGIR     proffered     its      nondiscriminatory

explanation.

       Accordingly,       we    vacate       the    district    court’s    decision    to

grant      summary   judgment        to     SIGIR   on   Burgess’s    first    claim   of

discriminatory termination. 4


       4
       The parties also dispute the district court’s finding of a
“same   actor”  inference,   which   permits  courts   to  reject
discriminatory termination claims when the same actor both hired
and fired the plaintiff. As we have held, “[w]hen the hirer and
firer are the same individual, there is a powerful inference
relating to the ‘ultimate question’ that discrimination did not
motivate the employer, and the early resolution of this question
need not be derailed by strict fealty to proof schemes.” Proud
v. Stone, 945 F.2d 796, 798 (4th Cir. 1991). The district court
found that the same actor inference applied, because Burgess was
both hired and fired by Bowen.     Burgess contends that she was
hired by Bowen and fired by Cruz, the latter decision occurring
under circumstances showing that Bowen merely rubber-stamped
Burgess’s termination after delegating personnel decisions to
Cruz.    Viewed in the light most favorable to Burgess, the
evidence presents a genuine issue of fact as to who made the
decision to terminate Burgess, and thus whether the same actor
inference should apply. See, e.g., Schmidt v. Montgomery Kone,
Inc., 69 F. Supp. 2d 706, 711 (E.D. Pa. 1999) (distinguishing
(Continued)
                                              19
                                       B.

     Burgess        also    alleges         that        she        suffered      racial

discrimination      when   she   was   denied       a    transfer       to    the   DPA

position   or   a   “Senior   Advisor”       position         to   which     terminated

employees were routinely assigned. 5               To establish a prima facie

case for a discriminatory denial of transfer claim, a plaintiff

must show that (1) she is a member of a protected group; (2) she

applied for the position in question; 6 (3) she was qualified for

the position; and (4) she was rejected for the position in favor

of   someone    not    a   member      of     the       protected       group    under



Proud and holding that reliance on the “same actor” inference at
the summary judgment stage is misplaced where there exists a
factual dispute regarding who hired and fired the plaintiff).
Indeed, Cruz herself testified that she made the decision to
terminate Burgess, and Bowen agreed thereafter.
     5
       Burgess contends that it was SIGIR’s common practice to
assign underperforming employees, or those whose positions had
been eliminated, to “Senior Advisor” positions. She argues that
the fact that she was not offered such a position demonstrates
further that she suffered discrimination.    SIGIR disputes this
claim, arguing that no such policy existed. Because we find for
Burgess on her contention that she was denied a transfer to the
DPA position, we do not address this separate argument.
     6
        As the district court acknowledged, Burgess cannot show
that she applied for or requested a transfer within the agency.
Burgess did, however, file a declaration stating that she “would
have chosen to stay on at SIGIR in the Director of Public
Affairs position or any other position in lieu of termination,”
id. 2118 (internal quotations omitted), which the agency did not
rebut.    On this record, the district court elected to treat
Burgess   as  though   she  had   applied  for   a  transfer,  a
determination that the agency does not challenge on appeal.



                                       20
circumstances      giving        rise     to    an     inference        of     unlawful

discrimination.         Lowery v. Circuit City Stores, Inc., 158 F.3d

742, 760 (4th Cir. 1998) (vacated on other grounds).

     The district court found that Burgess had established a

prima facie case with respect to this claim.                   However, the court

again     found     that       SIGIR      had        proffered      a        legitimate

nondiscriminatory reason for denying Burgess the transfer:                            that

Burgess   “was    not    the   person     for   the    job,”     Burgess,      2010     WL

3064307, at *12 (internal quotations omitted), and that “Cruz

genuinely perceived that the new . . . position should be filled

by a lower level, hands-on employee,” id. at *13, who would “do

the heavy lifting, who was not above making the phone calls . .

. the day-to-day scheduling, management and callbacks,” id. at

*12 (internal quotations omitted).              The district court concluded

that Burgess had failed to present evidence to establish that

this proffered reason was pretextual.

     SIGIR asserts that Burgess’s own complaints about lacking

administrative support and resources rendered her unfit for the

DPA position.       While Burgess admits to complaining about being

understaffed      during    her    time    as   the    AIG-PA,     this       does     not

necessarily      compel    the    conclusion         that   she    was       unable     to

accomplish the tasks required of the DPA position.                             On that

score, Burgess points to evidence showing that she was awarded a

bonus for exemplary performance and that she routinely worked

                                          21
late   hours     to   execute       the     functions         of      the   Public      Affairs

office.     This evidence, Burgess contends, demonstrates that she

was fully able and willing to assume any responsibilities called

for by the DPA position.                 Burgess further contends that Belisle-

-who   herself     had     been     terminated         at    least     in   part       for   poor

performance--was         in   no    better       position        to    do   so.        Finally,

Burgess argues that SIGIR’s vague characterization that she “was

not the person for the job,” id. at *12 (internal quotations

omitted),       cannot     suffice        as     a    legitimate        nondiscriminatory

reason for denying her the transfer; in fact, she contends that

the statement could just as well reveal racial animus.                                 We agree

with Burgess that it should be up to a jury whether to credit

SIGIR’s explanation.

       Although we agree with the district court that “there must

be a sufficient record of proof for a reasonable jury to agree

[that race was the basis for denying Burgess a transfer],” id.

at *13 (citing Ross v. Commc’ns Satellite Corp., 759 F.2d 355,

364 (4th Cir. 1995)), we find Burgess satisfies this standard.

Burgess’s       evidence      as    to    this       claim   reveals        inconsistencies

undermining the credibility of SIGIR’s proffered explanation as

to   why   it    declined      to    offer     Burgess       a     transfer       to   the    DPA

position.       Under Reeves, Burgess was required to do no more to

survive a motion for summary judgment.                           Accordingly, we vacate

the district court’s decision as to this claim.

                                               22
                                             C.

      Burgess      also        alleges        that        she    suffered        unlawful

retaliation, once when she was terminated and again when she was

denied   a     transfer.        To    establish          a    prima   facie     case   for

retaliation, a plaintiff is required to prove the following: (1)

she engaged in a protected activity; (2) an adverse employment

action   was    taken     against      her;       and     (3)   there    was    a   causal

connection between the first two elements.                      Dowe v. Total Action

Against Poverty in Roanoke Valley, 145 F.3d 653, 656 (4th Cir.

1998).   If she does so, the burden shifts to the defendant to

proffer a legitimate, nonretaliatory reason for its decision,

which she must then rebut.             Id.        The district court assumed that

Burgess engaged in protected activity, but found that her claims

failed   the     third     prong     because        the      decisions    to    terminate

Burgess’s position and to hire Belisle were made as part of

SIGIR’s reorganization plan prior to Burgess engaging in any

protected activity.

      The parties first contest whether Burgess in fact engaged

in protected activity.           Burgess contends that she engaged in two

protected acts, the first when she verbally complained to Cruz

that she and Redmon were being “targeted,” and the second when

she   questioned         the    “fairness          and       equality”    of     Redmon’s

termination in a subsequent email to Cruz.                            As to the first

point,   Burgess    explains         that    her     “intent     of     using   the    word

                                             23
targeted was to alert [Cruz] in very concrete terms that there

was concern on [Burgess’s] part that this was racial.”                                  J.A.

1371.   As to the second point, Burgess asserts that her email

borrowed     verbatim      from      language       that       appeared   on    the    Equal

Employment Opportunity Commission website and was also contained

in SIGIR’s EEO policy.

     Our     cases      hold   that     an    employee’s         complaint     constitutes

protected activity when the employer understood, or should have

understood,     that      the     plaintiff         was     opposing      discriminatory

conduct.     Richardson v. Richland Cnty. School Dist. No. 1, 52 F.

App’x 615, 617 (4th Cir. 2002) (citing Galdieri-Ambrosini v.

Nat’l Realty & Dev. Corp., 136 F.3d 276, 291-92 (2d Cir. 1998)

(“[I]mplicit       in    the   requirement         that     the    employer     have    been

aware   of   the     protected       activity       is     the    requirement     that    it

understood,     or      could     reasonably         have        understood,    that     the

plaintiff’s     opposition        was    directed         at    conduct   prohibited      by

Title VII.”)); Sajadian v. Am. Red Cross, No. 99-1263, 1999 WL

1111455, at *1 (4th Cir. Dec. 7, 1999) (same); see also EEOC

Compliance Manual § 8-II.B.2 (2006) (“[A] protest is protected

opposition     if       the     complaint          would       reasonably      have     been

interpreted     as       opposition          to    employment        discrimination.”).

Determining     whether         an    employer       should        have   understood      a

complaint to constitute protected activity requires courts to

consider whether the complaint could reasonably have led the

                                              24
employer     to       understand      the    nature    of   the    complaint          in    the

context in which it was made.                Richardson, 52 F. App’x at 617.

      We   find       that    SIGIR    actually       understood        or    should       have

understood        that    Burgess       was     complaining        of    discriminatory

conduct.     See Okoli v. City of Baltimore, 648 F.3d 216, 224 (4th

Cir. 2011) (finding that it was “enough for [the plaintiff] to

twice complain of ‘harassment,’ even if it might have been more

ideal for her to detail the sexual incidents she later relayed”

and   that      the    employer      “surely       should   have    known       that       [the

plaintiff’s]          complaints       of     ‘harassment’        likely       encompassed

sexual harassment”).               Indeed, the response to Burgess’s email

underscores       our     conclusion,        because    Cruz      almost       immediately

asked to consult with SIGIR’s counsel after receiving Burgess’s

complaint, and the ensuing discussions included “EEO” issues.

The evidence also shows that Cruz, whose former role as SIGIR’s

Chief of Staff made her well familiar with personnel matters,

forwarded Burgess’s complaint to Arnston, SIGIR’s then chief of

staff, who had already discussed with Burgess her concerns about

race discrimination.              Three attorneys, including one experienced

in employment law, also received Burgess’s complaint.                                On these

facts,     we     have       no    trouble     concluding      that          SIGIR     either

understood, or at the very least should have understood, that

Burgess was complaining of discriminatory conduct.



                                              25
       Turning now to the merits of the retaliation claims, we

acknowledge that some of the evidence before the district court

supports       SIGIR’s      position           that     the     decision        to   terminate

Burgess, as well as the decision to hire Belisle for the DPA

position,      occurred       prior       to    Burgess’s       engaging        in   protected

activity.           However, in Okoli we found it “deeply suspicious”

that an employee was fired only hours after she complained to

her superiors.          Id. at 223.             Further, we found it “undisputed”

that the employee’s supervisor fired the employee “only after

learning       of     her   complaint”          and     that    “[e]ven     assuming        [the

supervisor] previously contemplated firing her--[the employee’s]

complaint might have been an additional or superseding cause of

her ultimate termination.”                 Id. at 224.           We therefore concluded

that    “[a]ny         dispute         about        [the      employer’s]        alternative,

legitimate      basis       for       firing    her    returns      to    the    question     of

mixed-motives and pretext.”                Id. at 225.

       In     this    case,       a    jury     could      reasonably      find      that   the

decision to terminate Burgess and to hire Belisle occurred only

after       Burgess    challenged         the       fairness     and     equality      of   the

decision to terminate Redmon.                       Specifically, Burgess presented

evidence that, only after Cruz received Burgess’s email, did

Cruz (1)       telephone      Belisle          to   offer     her   a    contract     position

handling the public affairs duties (before the DPA position was

finalized), (2) instruct Arnston to draft a description for the

                                                26
new DPA position, and (3) schedule a meeting to inform Burgess

of her termination.              Finally, and most probative on Burgess’s

retaliatory denial of transfer claim, is Cruz’s own admission

that she would have considered offering Burgess another position

had the conversation during Burgess’s termination meeting gone

differently. 7

      We   have    held    that     “[v]ery        little        evidence        of    a   causal

connection    is    required       to   establish            a   prima      facie      case   [of

retaliation],” Tinsley v. First Union Nat’l Bank, 155 F.3d 435,

443   (4th   Cir.    1998)       (overruled           on    other     grounds);         temporal

proximity    between       the    protected           activity        and   the       employer’s

adverse action alone will suffice, see Clark Cnty. Sch. Dist. v.

Breeden, 532 U.S. 268, 273 (2001); accord Price v. Thompson, 380

F.3d 209, 213 (4th Cir. 2004).                    We agree with Burgess that she

has   established      a     prima      facie         case       of    retaliation.           In

concluding otherwise, the district court again failed to view

the evidence in the light most favorable to Burgess.

      Burgess’s      claims       may   nevertheless              fail      if    she      cannot

overcome     SIGIR’s       proffer      of        a        legitimate,       nonretaliatory

explanation.        The district court dispensed with this analysis

      7
       Even if the decision to terminate Burgess had already been
made, denying Burgess a transfer itself constitutes an adverse
action and entitles her to present her retaliation claim to the
jury. See Burlington Northern & Santa Fe Railway Co. v. White,
548 U.S. 53, 62 (2006).



                                             27
having   found     no        prima   facie     case.      We   find     here    that   the

question of whether the agency proffered a nonretaliatory reason

for terminating Burgess and denying her the transfer merges with

our prior discussion concerning the agency’s proffered reason in

the context of Burgess’s discrimination claims.                            Although we

agree with the district court that the agency has proffered a

legitimate nonretaliatory reason, Burgess’s prima facie evidence

combined with the additional evidence tending to undermine the

credibility       of    that     reason      suffices    to    defeat    the    agency’s

motion for summary judgment.



                                              IV.

       In sum, the record in this case reveals an abundance of

genuine factual         disputes       on    material    issues.        While    we    have

viewed and recounted the facts in the light most favorable to

Burgess,     we    acknowledge         that    SIGIR’s     contentions         also    find

support in the record.               Be that as it may, the evidence in this

case   was   not       “so    one-sided”      as    to   warrant   granting       SIGIR’s

motion for summary judgment on Burgess’s claims.                          Accordingly,

we vacate the district court’s judgment and remand for further

proceedings.

                                                               VACATED AND REMANDED




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