Loni Czekalski v. Raymond L. La Hood , Secretary , Department of Transportation

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 13, 2009 Decided December 29, 2009
No. 08-5431
LONI CZEKALSKI,
APPELLANT
v.
RAYMOND L. LA HOOD , SECRETARY ,
DEPARTMENT OF TRANSPORTATION ,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:02-cv-01403)
Ellen K. Renaud argued the cause for the appellant. David
H. Shapiro and Richard L. Swick were on brief.
Darrell C. Valdez, Assistant United States Attorney, argued
the cause for the appellee. R. Craig Lawrence, Assistant United
States Attorney, was on brief.
Before: GINSBURG and HENDERSON , Circuit Judges, and
RANDOLPH , Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge HENDERSON .
KAREN LE CRAFT HENDERSON , Circuit Judge: Loni
Czekalski sued the Department of Transportation (DOT),
alleging that her supervisor at the Federal Aviation

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Administration (FAA) discriminated against her on the basis of
sex by reassigning her to an inferior position. Czekalski’s claim
went to trial and the jury found for the DOT. Czekalski now
appeals the jury verdict as well as the district court’s denial of
her motion for a new trial. We affirm.
I.
Czekalski started working at the FAA in 1970. By 1995 she
had risen to Director of the Office of Communications,
Navigation, and Surveillance Systems—a Senior Executive
Service (SES) position. According to Czekalski, that position
supervised 269 federal employees and approximately 500
contractors, oversaw 96 programs and managed a budget of over
$300 million. In June 1997, George Donohue—the FAA’s
A s s o c i a t e A d m i n i s t r a t o r f o r R e s e a r c h a n d
Acquisitions—reassigned Czekalski to the Office of Information
Technology, where she was to serve as Program Manager for the
Year 2000 (Y2K) Project. According to Czekalski, the new
position supervised four federal employees and four contractors,
had no budget and reported to one of her former peers.
Donohue explained his reasons for the reassignment in a
memorandum to Czekalski dated June 12, 1997. Pl.’s Trial Ex.
1. He cited, inter alia, “fail[ure] to provide . . . direction and
support,” “allowing [a] program to languish” and a general lack
of “leadership qualities.” Id. Despite these criticisms, Donohue
assured Czekalski that the “reassignment is a lateral move
involving no loss of pay or SES status.” Id. Donohue said the
move reflected his belief that Czekalski’s “background and
technical knowledge could be of substantial assistance” to the
Y2K Project. Id.
Czekalski took early retirement at the end of 1997 after
occupying her new position for only six months. According to
multiple trial witnesses, the position proved vital. Czekalski
herself acknowledged that it became a highly visible position,

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1 Both parties consented to disposition of Czekalski’s claim by a
United States magistrate judge. See 28 U.S.C. § 636(c).
2 “A plaintiff ‘makes out a prima facie case of disparate-treatment
discrimination by establishing that: (1) she is a member of a protected
class; (2) she suffered an adverse employment action; and (3) the
unfavorable action gives rise to an inference of discrimination.’”
Czekalski I, 475 F.3d at 364 (quoting George v. Leavitt, 407 F.3d 405,
412 (D.C. Cir. 2005)) (internal quotation omitted).
entailing contact and coordination with other agencies, the FAA
Administrator and the Congress. Trial Tr. 57-60 (Nov. 8, 2007).
One FAA employee described it as “probably . . . the single
most significant office in the entire agency” and noted that the
office-holder “was interviewed by everything; Wall Street
Journal, New York Times; every magazine; every government
publication.” Trial Tr. 36-37 (Nov. 15, 2007). He explained that
the position “had huge visibility because everyone was
concerned about what was going to happen with aviation. No
one wanted an airplane dropping on their house . . . at the stroke
of midnight on 2000.” Id. at 37.
Czekalski filed this lawsuit in July 2002, after exhausting
her administrative remedies. See Czekalski v. Peters, 475 F.3d
360, 362 (D.C. Cir. 2007) (Czekalski I). She alleged that her
reassignment constituted sex discrimination in violation of Title
VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. §§
2000e et seq. In April 2005, the magistrate judge1 granted
summary judgment to the DOT on the ground that Czekalski
“cannot make out a prima facie case of discrimination.”2
Czekalski v. Sec’y of Transp., C.A. No. 02-1403, 2005 WL
975679, at *12 (D.D.C. Apr. 21, 2005). We reversed, concluding
that a reasonable juror could find that she had suffered an
adverse employment action and could infer that the reason for
the action was discrimination. Czekalski I, 475 F.3d at 365, 369.

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The parties tried the case before a jury for ten days in
November 2007. At the close of evidence and after arguments
the magistrate judge instructed the jury as to the relevant law
and provided it with a written version of the charge, including
the applicable standard for determining an adverse employment
action. The jury found for the DOT. It returned a special verdict
form stating that Czekalski had not “proved by a preponderance
of the evidence that she suffered an adverse employment action
as a result of her reassignment.” Verdict Form, Czekalski v.
Sec’y of Transp., C.A. No. 02-1403 (D.D.C. Nov. 20, 2007).
Czekalski moved for a new trial on the grounds that “the jury’s
verdict was against the weight of the evidence” and “the Court
deprived Plaintiff of a fair and impartial trial.” Pl.’s Mot. for
New Trial, Czekalski v. Sec’y of Transp., C.A. No. 02-1403, at
3 (D.D.C. Dec. 26, 2007). The magistrate judge denied the
motion. This appeal timely followed.
II.
Czekalski argues that the magistrate judge committed
reversible error in (1) instructing the jury on the standard to be
used in determining an adverse employment action vel non
under Title VII; (2) not instructing the jury that it could draw an
adverse inference from DOT’s failure to produce certain
evidence; (3) denying her motion for a new trial and (4) making
biased statements and rulings that deprived her of a “fair and
impartial” trial.
A. Jury Instructions Regarding Adverse Employment Action
“An alleged failure to submit a proper jury instruction is a
question of law subject to de novo review; the choice of the
language to be used in a particular instruction, however, is
reviewed only for abuse of discretion.” Joy v. Bell Helicopter
Textron, Inc., 999 F.2d 549, 556 (D.C. Cir. 1993). The harmless
error rule applies; to warrant reversal, “‘the error must have
been prejudicial: It must have affected the outcome of the

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3 The relevant instructions, in their entirety, read:
Next, you are instructed that the burden is on the
Plaintiff to show that she suffered an adverse employment
action. The Civil Rights Act does not apply and is not
intended to apply to every workplace reassignment. An
employer's decision that does not have a tangible effect on
an employee does not qualify as an adverse action, even if
the employee considers it insulting or offensive.
Moreover, changes in duties or working conditions,
including reassignments that do not have a tangible effect
on the terms, conditions or privileges of employment are
not adverse actions. Even if an action is contrary to an
employee’s personal preferences, that does not make it an
adverse employment action. However, it is for you to
district court proceedings.’” Muldrow ex rel. Estate of Muldrow
v. Re-Direct, Inc., 493 F.3d 160, 168 (D.C. Cir. 2007) (quoting
United States v. Olano, 507 U.S. 725, 734 (1993)); see Fed. R.
Civ. P. 61.
Czekalski contends that the magistrate judge improperly
instructed the jury on what constitutes an adverse employment
action under Title VII. Jury instructions are proper if, “when
viewed as a whole, ‘they fairly present the applicable legal
principles and standards.’” Joy, 999 F.2d at 556 (quoting EEOC
v. Atl. Cmty. Sch. Dist., 879 F.2d 434, 436 (8th Cir. 1989)). This
circuit’s standard for an adverse employment action is well-
established: “[A]n employee suffers an adverse employment
action if he experiences materially adverse consequences
affecting the terms, conditions, or privileges of employment or
future employment opportunities such that a reasonable trier of
fact could find objectively tangible harm.” Forkkio v. Powell,
306 F.3d 1127, 1131 (D.C. Cir. 2002). The magistrate judge
relayed this standard in the third paragraph of the relevant
instructions.3 Thus, the jury had the guidance necessary to

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determine whether the reassignment of the Plaintiff to the
Year 2000 Program was a reassignment to a position with
significantly different responsibilities.
An employee suffers an adverse employment action
if she experiences materially adverse consequences
affecting the terms, conditions or privileges of employment
such that you find objectively tangible harm. Whether a
particular assignment of duties constitutes an adverse
action, for purposes of Title VII, is a jury question, that is,
one for you to determine.
Trial Tr. 181-82 (Nov. 16, 2007).
4 The sentence, properly punctuated, would read: “Moreover,
changes in duties or working conditions, including reassignments, that
do not have a tangible effect on the terms, conditions or privileges of
employment are not adverse actions.”
render its special verdict as to whether Czekalski suffered an
adverse employment action.
It is true that the second paragraph of the charge wants for
clarity. Most troubling is its first sentence, which, as punctuated
in the transcript included in the Joint Appendix, reduces to the
proposition that “changes in duties and working conditions . . .
are not adverse actions.” See Trial Tr. at 182. But we believe
this perceived defect is simply the result of faulty
punctuation—a mere comma corrects it4—and we therefore
decline to read the instruction in such a manner as to give it a
commonsensically false meaning. While the record does not
contain the written charge that was sent to the jury, assuming
that version has the same punctuation as the one we are
reviewing, we are nevertheless assured that the jury did not
misread its meaning, especially given its position in the charge.
Indeed, regardless of its punctuation, the sentence is largely
superfluous. As noted above, it is followed by a paragraph that
lays out the adverse employment action standard as articulated

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5 Czekalski asserts that the magistrate judge should have
instructed “the jury that if it found that Czekalski’s duties dramatically
declined in quality or quantity, then it should find she suffered an
adverse employment action.” Appellant’s Br. 32.
in Forkkio. Further, the preceding sentence conveys much the
same meaning, even though it refers to “[a]n employer’s
decision” instead of “changes in duties and working conditions”
and it emphasizes the irrelevance of an employee’s subjective
reaction in place of reassignments per se.
Perhaps the magistrate judge could have focused more
attention on what an adverse employment action is as opposed
to what an adverse employment action is not. The first four
sentences describing an adverse action are framed in the
negative. Trial Tr. 181-82 (Nov. 16, 2007). Not until the end of
the second paragraph does the instruction begin to equip the jury
with a positive description of an adverse employment action. Id.
Nevertheless, we believe that a juror who both heard and read
the instructions in their entirety—especially the concluding
paragraph—would have had a correct understanding of what
constitutes an adverse employment action. “[W]hen viewed as
a whole,” therefore, the instructions “‘fairly present the
applicable legal principles and standards.’” Joy, 999 F.2d at 556
(quoting Atl. Cmty. Sch. Dist., 879 F.2d at 436).
Czekalski also argues that the magistrate judge erred in
failing to include certain alternate articulations of the adverse
employment action standard.5 She expressly relies on the
concurring opinion in Lutkewitte v. Gonzales, which states that
“[a] party is entitled to an instruction on any legal theory that
has a basis in the law and the record.” 436 F.3d 248, 255 (D.C.
Cir. 2006) (Brown, J., concurring) (citing Joy, 999 F.2d at 556).
Her argument ignores the fact that “‘[a]s long as a district
judge’s instructions are legally correct . . . he is not required to
give them in any particular language.’” Joy, 999 F.2d at 556

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6 Czekalski also claims that “it was reversible error for the judge
to refuse to tell the jury that if it found that the reassignment was to a
position with significantly different responsibilities, it should find
there was an adverse employment action.” Appellant’s Br. 34. This is
not an accurate recitation of the “‘applicable legal principles and
standards.’” Joy, 999 F.2d at 556 (quoting Atl. Cmty. Sch. Dist., 879
F.2d at 436); see discussion of Czekalski I infra Part II.C. Thus, it was
not error for the magistrate judge to omit it.
(quoting Miller v. Poretsky, 595 F.2d 780, 788 (D.C. Cir. 1978))
(ellipsis in original). As discussed above, the magistrate judge
correctly instructed the jury on the relevant legal theory. The
fact that she did so without including the precise language
Czekalski requested was not an abuse of discretion. See Joy, 999
F.2d at 556. 6
B. Jury Instruction Regarding Missing Evidence
Czekalski next argues that the magistrate judge erred by not
instructing the jury that it could infer from the DOT’s failure to
produce certain evidence that the evidence would be unfavorable
to the DOT. We review the trial court’s decision not to issue a
“missing-evidence instruction” for abuse of discretion. United
States v. West, 393 F.3d 1302, 1309 (D.C. Cir. 2005). Such an
instruction “is appropriate if it is peculiarly within the power of
one party to produce the evidence and the evidence would
elucidate a disputed transaction.” Id. The party complaining of
the missing evidence bears the burden of demonstrating that it
is peculiarly in the opposing party’s control. Id. at 1309-10.
Czekalski has not shown that such an instruction would be apt
in this case; she has not identified any evidence peculiarly
available to the DOT—evidence which it did not produce—that
would shed light on her claim. Nor has she described any
attempt on her part to obtain said evidence. See id. at 1310
(noting that party failed to carry its burden by, for instance,
seeking or subpoenaing “missing” document). In addition, it

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appears that the “missing evidence” she describes is not missing
at all but in fact resides in the record. Czekalski points to
Donohue’s testimony in which he refers to a “memorandum
[that] said that an SES would be responsible for each agency to
report directly to the administrator.” Trial Tr. 156 (Nov. 14,
2007). She complains that “no documentary evidence was
introduced to show that the position of Y2K Program Manager
was going to, or ever did, report directly to the Administrator.”
Appellant’s Br. 36. But the record contains such a memorandum
and it states, “Administrators will appoint a senior executive to
sponsor their Year 2000 effort. Sponsors will report directly to
the Administrator . . . .” Pl.’s Trial Ex. 44. Accordingly, the
magistrate judge did not abuse her discretion in omitting the
instruction.
C. Motion for a New Trial
Next, Czekalski argues that a new trial is warranted because
the jury’s verdict was against the weight of the evidence. “This
court reviews de novo the trial court’s denial of a motion . . . for
a new trial. The jury verdict stands ‘unless the evidence and all
reasonable inferences that can be drawn therefrom are so one-
sided that reasonable men and women could not disagree on the
verdict.’” Curry v. District of Columbia, 195 F.3d 654, 658-59
(D.C. Cir. 1999) (quoting Smith v. Wash. Sheraton Corp., 135
F.3d 779, 782 (D.C. Cir. 1998)) (citation omitted). Czekalski
asserts that “[t]he evidence at trial was uncontroverted that [she]
had significantly different responsibilities when she was
transferred.” Appellant’s Br. 37-38. Because she had
“significantly different responsibilities,” she argues, she
necessarily suffered an adverse employment action. Id. at 37-40.
Her argument misunderstands the inquiry. She relies on a

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7 The passage reads:
“[W]ithdrawing an employee’s supervisory duties,”
for example, “constitutes an adverse employment
action.” [Stewart v. Ashcroft, 352 F.3d 422, 426
(D.C. Cir. 2003)]; see Burke v. Gould, 286 F.3d 513,
522 (D.C. Cir. 2002). So, too, does “reassignment
with significantly different responsibilities.” Forkkio
v. Powell, 306 F.3d 1127, 1131 (D.C. Cir. 2002)
(quoting Burlington Indus., Inc. v. Ellerth, 524 U.S.
742, 761 (1998)); see Holcomb v. Powell, 433 F.3d
889, 902 (D.C. Cir. 2006).
Czekalski has raised a genuine issue as to
whether the reassignment left her with “significantly
different”—and diminished—supervisory and
programmatic responsibilities.
Czekalski I, 475 F.3d at 364.
8Holcomb and Forkkio both cite Burlington for the proposition
that “reassignment with significantly different responsibilities . . .
generally indicates an adverse action.” Holcomb, 433 F.3d at 902
(emphasis added) (quoting Forkkio, 306 F.3d at 1131 (quoting
Burlington, 524 U.S. at 761)). Neither case supports Czekalski’s
argument that, if she experienced a “reassignment with significantly
different responsibilities,” she necessarily suffered an adverse
employment action. Rather, both cases indicate that an adverse
employment action results from a “significant change in
responsibilities” if it effects objective harm. Indeed, Burlington itself
invokes the Seventh Circuit’s statement that “‘[a] materially adverse
change might be indicated by . . . significantly diminished material
responsibilities.’” 524 U.S. at 761 (quoting Crady v. Liberty Nat’l
passage from Czekalski I7 but she does not heed that opinion or
the precedent it invokes. Neither Forkkio, Burlington nor
Holcomb suggests that the entire adverse-action standard can be
reduced to the question whether a change in position entails
“significantly different responsibilities.”8 Nor, for that matter,

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Bank & Trust Co. of Ind., 993 F.3d 132, 136 (7th Cir. 1993))
(emphasis added).
does Czekalski I. It does not articulate a new rule; it simply lays
out authority for the uncontroversial point that, under certain
circumstances, a lateral transfer may qualify as an adverse
action; whether it does or not is “generally a jury question.” See
475 F.3d at 364-65. The court was as good as its word inasmuch
as it remanded for trial on, inter alia, the issue of “whether the
reassignment left her with ‘significantly different’—and
diminished—supervisory and programmatic responsibilities.” Id.
at 364 (emphasis added). Had the Czekalski I court meant what
Czekalski contends, it of course would not have remanded for
trial on that issue.
As we noted above—and as the magistrate judge informed
the jury—we determine whether an action constitutes an adverse
employment action by asking whether the employee
“experiences materially adverse consequences affecting the
terms, conditions, or privileges of employment or future
employment opportunities such that a reasonable trier of fact
could find objectively tangible harm.” Forkkio, 306 F.3d at
1131. Under this standard, the record contains more than enough
evidence to uphold the jury’s determination that Czekalski’s
reassignment was not an adverse employment action. Czekalski
retained her pay grade and her SES status and there is evidence
that her new position—far from harming her current or future
professional prospects—in fact proved vital, visible and
prestigious. Although Czekalski put on evidence and argued that
the new position lacked import when Donohue assigned her to
it in 1997, the DOT countered with evidence that the position
was regarded as critical even at that early date. We see no reason
to disturb the jury’s verdict as to this dispute. Because the
evidence is not “‘so one-sided that reasonable men and women
could not disagree,’” Curry, 195 F.3d at 659 (D.C. Cir. 1999)

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(quoting Smith, 135 F.3d at 782), on whether Czekalski
“experience[d] materially adverse consequences affecting the
terms, conditions, or privileges of employment or future
employment opportunities,” Forkkio, 305 F.3d at 1131, we agree
with the magistrate judge that a new trial is not warranted on this
ground.
D. Bias
Czekalski also argues that a new trial is required because
the magistrate judge made several statements and evidentiary
rulings that manifested bias against her and deprived her of “a
fair and impartial trial.” Appellant’s Br. 40. Judicial comments
during trial establish bias if “they reveal such a high degree of
favoritism or antagonism as to make fair judgment impossible.”
Liteky v. United States, 510 U.S. 540, 555 (1994); see United
States v. Carson, 455 F.3d 336, 355 (D.C. Cir. 2006). “Not
establishing bias or partiality, however, are expressions of
impatience, dissatisfaction, annoyance, and even anger, that are
within the bounds of what imperfect men and women, even after
having been confirmed as federal judges, sometimes display.”
Liteky, 510 U.S. at 555-56. Having reviewed the trial transcript,
including the portions Czekalski highlights, we see no indicia of
“a high degree of favoritism or antagonism” requiring a new
trial in this case. Id. at 555. Moreover, “judicial rulings alone
almost never constitute a valid basis” for an allegation of bias,
id., and we see none here that would support reversal on that
ground.
For the foregoing reasons, we affirm the judgment of the
district court.
So ordered.

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