                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 15-1331


CARLA CALOBRISI,

               Plaintiff - Appellant,

          v.

BOOZ ALLEN HAMILTON, INC.,

               Defendant - Appellee.

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

AARP,

               Amicus Supporting Appellant.



                             No. 15-1399


CARLA CALOBRISI,

               Plaintiff - Appellee,

          v.

BOOZ ALLEN HAMILTON, INC.,

               Defendant - Appellant.

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

AARP,

               Amicus Supporting Appellee.
Appeals from the United States District Court for the Eastern
District of Virginia, at Alexandria.      Anthony J. Trenga,
District Judge. (1:14-cv-00996-AJT-MSN)


Argued:   March 24, 2016                   Decided:    August 23, 2016


Before GREGORY,   Chief    Judge,   and   MOTZ   and   KEENAN,   Circuit
Judges.


Affirmed in part and vacated and remanded in part by unpublished
per curiam opinion.


ARGUED: Linda Marie Correia, CORREIA & PUTH, PLLC, Washington,
D.C., for Appellant/Cross-Appellee.     Stephen William Robinson,
MCGUIREWOODS LLP, Tysons Corner, Virginia, for Appellee/Cross-
Appellant. ON BRIEF: Amber C. Trzinski Fox, Jonathan C. Puth,
CORREIA & PUTH, PLLC, Washington, D.C.; John R. Ates, ATES LAW
FIRM,   Alexandria,    Virginia,   for    Appellant/Cross-Appellee.
Melissa   L.    Taylormoore,   Sarah   A.    Belger,   MCGUIREWOODS
LLP, Tysons   Corner,   Virginia,  for   Appellee/Cross-Appellant.
Daniel B. Kohrman, Laurie A. McCann, Dara S. Smith, AARP
FOUNDATION LITIGATION, Washington, D.C., for Amicus Curiae.


Unpublished opinions are not binding precedent in this circuit.




                                    2
PER CURIAM:

       This case principally involves Carla Calobrisi’s contention

that the district court erred in granting summary judgment to

Booz     Allen    Hamilton,         Inc.   on      her   age-    and       gender-based

employment discrimination and retaliation claims.

       Booz Allen is a professional services consulting firm with

offices throughout the country and around the globe.                          Beginning

in 2000, Calobrisi worked in the company’s Law Department.                             In

2004, Booz Allen promoted her to Principal, and she remained in

that position and gained more responsibility over the years,

until 2011.

       On   January     20,    2011,   her       supervisors    met    and    agreed   to

demote      Calobrisi    (then      age    fifty-five)     back       to     the   Senior

Associate level and to transfer many of her responsibilities to

two younger women.            At a meeting on January 26, her supervisors

informed her of the demotion, explaining that it was due to

workload changes and not her performance; they also told her

that the demotion was non-negotiable.                     Although disappointed,

Calobrisi remained in her position.                  Shortly after her demotion

she sought Principal positions in other Booz Allen departments

but was informed that her reputation had been ruined by the

demotion.       After Calobrisi raised concerns that her demotion was

the    result    of   age     and   gender       discrimination,      her    supervisor

suggested that she transition out of Booz Allen if she harbored

                                             3
such concerns.         Calobrisi left Booz Allen on October 31, 2011.

The   company      selected       a    thirty-one-year-old            male   to    fill      her

position.

        On   May    31,    2013,       Calobrisi        filed    a    complaint       in     the

District      of      Columbia         Superior         Court        alleging     sex-based

discrimination under Title VII, age-based discrimination under

the   Age    Discrimination           in     Employment       Act,    violations        of   the

District of Columbia Human Rights Act, and retaliation claims

associated with each of these claims.                          Booz Allen removed the

case to the United States District Court for the District of

Columbia     where,       after       discovery       on   jurisdictional         and      venue

issues, the court dismissed the Human Rights Act claims.                                     The

court then transferred the case to the District Court for the

Eastern District of Virginia because most of the alleged acts

took place in McLean, Virginia.                      On March 24, 2015, the district

court    granted      Booz      Allen’s       motion       for   summary       judgment      on

Calobrisi’s        discrimination          and   retaliation         claims,    but     denied

Booz Allen’s motion for Rule 11 sanctions.                            Both parties noted

appeals to this Court.

        We review a district court’s grant of summary judgment de

novo,    viewing     the     facts      in    the     light    most    favorable        to   the

nonmoving     party       and   making        all     reasonable      inferences        in   her

favor.       Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50

(1986).      To survive summary judgment, a plaintiff must establish

                                                 4
a genuine dispute of material fact supporting her claims.                        Fed.

R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23

(1986).     We affirm, on the reasoning of the district court, the

grant     of   summary     judgment        to     Booz   Allen   on     Calobrisi’s

retaliation claim and to Calobrisi on Booz Allen’s request for

sanctions.      For the following reasons, however, we reverse the

grant     of   summary     judgment        to     Booz   Allen   on     Calobrisi’s

discrimination and constructive discharge claims.

     Calobrisi      has    chosen     to        pursue   her   claims    under   the

McDonnell      Douglas    burden-shifting          framework.      See    McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973).                     There are three

steps to the McDonnell Douglas framework:                      (1) the plaintiff

starts with the burden of establishing a prima facie employment

discrimination case; 1 (2) once the plaintiff meets that burden,




     1 To establish a prima facie case of gender-based employment
discrimination under Title VII, Calobrisi must show “(1) she is
a member of a protected class; (2) she suffered adverse
employment action; (3) she was performing her job duties at a
level that met her employer’s legitimate expectations at the
time of the adverse employment action; and (4) the position
. . . was filled by similarly qualified applicants outside the
protected class.”    Hill v. Lockheed Martin Logistics Mgmt.,
Inc., 354 F.3d 277, 285 (4th Cir. 2004) (en banc).       The same
analysis is conducted for age discrimination claims, except that
the replacement employee need only be “substantially younger”
rather than outside the protected class.      Dugan v. Albemarle
Cty. Sch. Bd., 293 F.3d 716, 721 (4th Cir. 2002).


                                           5
the employer must articulate 2 a legitimate, non-discriminatory

reason for taking the adverse employment action at issue; (3)

finally, the burden shifts back to the plaintiff to show that

the stated reason for the adverse employment action is a mere

pretext for a true discriminatory purpose.                     Tex. Dep’t of Cmty.

Affairs v. Burdine, 450 U.S. 248, 252-56 (1981).                        In the third

step,       “the    burden         to    demonstrate     pretext    merges   with    the

ultimate burden of persuading the court that [the plaintiff] has

been       the     victim     of        intentional    discrimination.”       Hill    v.

Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 285 (4th

Cir.       2004)     (en      banc)        (alteration    in   original)     (internal

quotation marks omitted).

       The parties and the district court agree that Calobrisi

established a prima facie case and that Booz Allen presented a

non-discriminatory justification.                      The determinative question,

therefore, is did Calobrisi produce sufficient evidence for a

jury to conclude that the stated reason for her demotion was

pretext disguising a discriminatory purpose.

       Calobrisi         alleges         that   Booz   Allen   maintained     a     glass

ceiling that prevented female employees, particularly those who

were       older    or   in    higher       ranking    positions,    from    advancing.


       2The burden at this step is one of production, not
persuasion. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.
133, 142 (2000).


                                                6
According to Calobrisi, her demotion resulted from her running

headfirst into        that     glass   ceiling.            To    support    this     theory,

Calobrisi offers “other employee” evidence, 3 which consists of

the testimony of seven former Booz Allen employees, all middle-

aged women, who contend that they had been targeted for adverse

employment actions similar to those that Calobrisi experienced.

The    district      court,      summarily          concluding       that     this    other

employee      evidence     would    not   be    admissible         at     trial,   did   not

consider this evidence when ruling on Booz Allen’s motion for

summary judgment.

       The Supreme Court, however, has held that other employee

evidence “is neither per se admissible nor per se inadmissible.”

Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 381 (2008).

Rather,       a   court   must     engage      in    the        standard    admissibility

inquiry for each piece of other employee evidence.                           That is, the

court must determine if the evidence is relevant under Rule 401,

and, if so, whether it should nevertheless be excluded under

Rule       403.    Id.    at   387-88.         The    question       of    whether    other

employee evidence is relevant “is fact based and depends on many

factors, including how closely related the evidence is to the

plaintiff’s circumstances and theory of the case.”                          Id. at 388.


       3
       The parties and district court have referred to this
testimony as “me-too,” “other employee,” and “pattern and
practice” evidence.


                                            7
       The   factors         that    courts      consider          when     determining             the

admissibility         of    this     evidence         include:          whether         the    other

discriminatory         behavior       described           “is     close     in    time        to    the

events at issue in the case, whether the same decisionmakers

were    involved,          whether    the    witness            and   the    plaintiff             were

treated in a similar manner, and whether the witness and the

plaintiff       were       otherwise     similarly           situated.”             Griffin          v.

Finkbeiner, 689 F.3d 584, 599 (6th Cir. 2012) (quoting Elion v.

Jackson, 544 F. Supp. 2d 1, 8 (D.D.C. 2008)).                                    “As a general

rule, the testimony of other employees about their treatment by

the    defendant       is     relevant      to       the    issue      of    the        employer’s

discriminatory intent.”              Spulak v. K Mart Corp., 894 F.2d 1150,

1156 (10th Cir. 1990).

       The district court did not individually analyze each piece

of other employee evidence pursuant to factors like those listed

in Griffin.        Nor did the court determine “how closely related

the evidence [was] to [Calobrisi’s] circumstances and theory of

the    case.”      Sprint,      552    U.S.      at       388.        Rather,      in    a    single

sentence,       the        court     conducted             very       nearly       its        entire

admissibility analysis, calling the witnesses “former employees

who held a variety of jobs, at a variety of times between 2007

and 2014, under a variety of managers, in different aspects of

the Booz Allen organization.”                        This analysis ignores both the

similar      treatment        experienced            by    Calobrisi         and        the    other

                                                 8
employee witnesses and the overlap of several decisionmakers at

Booz Allen.           This approach is not the one contemplated by the

Supreme Court in Sprint.

        The district court also placed too much emphasis on its

concern with “mini-trials.”             While this concern “is legitimate,”

accommodating it in every case “would tend to exclude any ‘other

acts’ evidence, regardless of how closely related it is to the

plaintiff’s circumstances.”             Griffin, 689 F.3d at 600.               Rather,

a court should analyze whether the probative value of the other

employee evidence outweighs the potential for distraction.

        On    remand,       the   district    court     may   find       that   some    of

Calobrisi’s proffered other employee evidence is admissible, and

thus relevant for summary judgment purposes.                        For example, the

court        could    determine     that     some     of    the    other     employees’

testimony        is     relevant    based        on   the   common       decisionmakers

involved in the witnesses’ departures and the similarities of

the departures’ circumstances.                    For example, members of Booz

Allen’s       all-male      “Leadership      Team”     triggered     several     of    the

departures and each featured an abrupt demotion or revocation of

responsibilities after years of positive reviews, leading to a

separation           from    Booz   Allen        employment       that    the   company

characterized as voluntary but that the witnesses characterized

differently.



                                             9
     From our vantage point, this evidence appears relevant but

“because the inquiry required by [Rules 401 and 403] is within

the province of the [d]istrict [c]ourt in the first instance,”

Sprint, 552 U.S. at 388, we remand the case to that court.         On

remand, the court can determine whether this evidence would be

admissible at trial and whether it creates a genuine dispute of

material   fact   such   that   Calobrisi’s   discrimination   and

constructive discharge claims should survive summary judgment. 4



                                             AFFIRMED IN PART AND
                                     VACATED AND REMANDED IN PART




     4 On remand, the district court should also reconsider the
other evidence of discrimination Calobrisi presented. Calobrisi
proffered evidence that Booz Allen’s reasons for her demotion
shifted, that those reasons were false, that Booz Allen
attempted   to    obfuscate    the   decisionmaker,   and  other
circumstantial evidence.    When considered along with the other
employee evidence, and in the light most favorable to Calobrisi,
this circumstantial evidence of intent may present a genuine
dispute of material fact that precludes summary judgment.


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