Opinion for the Court filed by Circuit Judge GINSBURG.
GINSBURG, Circuit Judge:
Luria N. Greene sued the Navy under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1), and her former supervisor under the common law, claiming that (1) her supervisor had sexually harassed her while she was employed by the Navy as a summer intern and (2) in retaliation for her complaining about the harassment the Navy refused to rehire her the following summer. The district court, concluding that Greene had failed to present sufficient evidence to support a jury verdict against the Navy, granted the Government's motion for summary judgment and dismissed the claim against the supervisor for lack of subject matter jurisdiction. Upon Greene's appeal, we hold that a reasonable jury could find that Greene was sexually harassed by her Navy supervisor, but not that the Navy retaliated against her because of her complaints about him. Accordingly, the judgment of the district court is reversed in part and affirmed in part.
Greene started work for the Navy as a temporary engineering technician on June 19, 1995; she was a 22-year-old graduate student at the time. According to her affidavit, which we credit in view of the procedural posture of the case, that same day "and virtually every day thereafter," her immediate supervisor, Lieutenant Commander Donald Clause, subjected her to "unwelcome discussions concerning sexual matters" and to amorous advances. Clause's campaign of harassment, she says, culminated on June 29 in his raping her. On August 2, when Clause allegedly propositioned her again, she reported the rape to a Navy EEO counselor.
In October, 1995 Greene filed a formal sexual harassment complaint with the Navy's Equal Employment Office. As a result of her allegations the Navy initiated a court martial proceeding against Clause, charging him with rape, sexual harassment, adultery, and conduct unbecoming an officer. Clause admitted having sex with Greene but claimed that it was consensual. In support of this defense he introduced evidence suggesting that Greene had in the past filed a number of frivolous sexual harassment complaints. He also introduced a diary, purportedly written by Greene, that confirmed his account of the June 29 incident. The military court found Clause guilty of adultery and conduct unbecoming an officer, but not guilty of rape or sexual harassment.
In 1996 Greene again applied for a summer position with the Navy. Another, allegedly less qualified, candidate was hired for the position. Greene asserts that the Navy refused to hire her because of the charges she had made against Clause.
Greene filed this suit in September, 1996. Her complaint includes claims against the Navy for sexual harassment and retaliation and against Clause for intentional infliction of emotional distress, as well as a demand for a jury trial. Instead of answering the complaint, both defendants moved to dismiss, or, in the alternative, for summary judgment.
The district court granted the Navy's motion for summary judgment and dismissed
This court reviews a grant of summary judgment de novo, that is, applying the same standard that governed the district court's decision. See Troy Corp. v. Browner, 120 F.3d 277, 281 (1997). Under Fed. R.Civ.P. 56(c), summary judgment is appropriate only if "there is no genuine issue as to any material fact." In deciding whether there is a genuine issue of fact before it, the court must assume the truth of all statements proffered by the party opposing summary judgment—subject to an exception discussed below. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). This is the standard even when the court entertains grave doubts about such a statement; like the weighing of evidence generally, the task of determining the credibility of a witness is the exclusive domain of the finder of fact. See id.; Bayer v. United States Dep't of Treasury, 956 F.2d 330, 333 (D.C.Cir.1992).
In granting summary judgment for the Navy on Greene's claim for sexual harassment, the district court quite clearly invaded the province of the jury. Greene submitted a sworn affidavit stating that Clause had harassed and raped her, and that the proffered diary suggesting otherwise was a forgery. If true, these allegations are indisputably sufficient to support a verdict against the Navy under Title VII. See Gary v. Long, 59 F.3d 1391, 1397 (D.C.Cir.1995). The allegations may, of course, be false. That is a question not for the court, however, but for the jury.
Recognizing, one suspects, the inevitability of this conclusion, the Navy argues that the district court's decision can be upheld upon an alternative ground, namely, that the Navy has made out the affirmative defense recognized by the Supreme Court in Faragher v. City of Boca Raton, ___ U.S. ___, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998), and Burlington Industries, Inc. v. Ellerth, ___ U.S. ___, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998). In those cases the Court held that when a supervisor creates a hostile work environment for a subordinate, their mutual employer can avoid or decrease its liability for the supervisor's acts by showing that (1) it took reasonable care to prevent and correct the harassment, but (2) the subordinate "unreasonably failed to avail herself of the employer's preventive or remedial apparatus." Faragher, 118 S.Ct. at 2292. Because the rigor with which the Navy enforces its strict anti-harassment policy is unquestioned, and because Greene admittedly waited more than a month to disclose the alleged rape, the Navy contends that it has made out this defense as a matter of law.
Even if the Navy can satisfy the first element of the Faragher test, however, it plainly has not met the second. The "failure to avail" standard is not intended to punish the plaintiff merely for being dilatory. Rather, it "reflects an . . . obvious policy imported from the general theory of damages," namely, that the victim has a duty to mitigate her damages. 118 S.Ct. at 2292. "If the victim could have avoided harm, no liability should be found against the employer who had taken reasonable care, and . . . no award against a liable employer should reward a plaintiff for what her own efforts could have avoided." Id.
Greene's claim of retaliation is an altogether different matter. As she correctly observes, the district court focused exclusively upon her charge, now effectively abandoned, that the Navy retaliated against her by failing to give her a permanent position, and ignored her contention that the service also refused to hire her for a second summer job. The latter allegation deserved more attention than the district court gave it, but not much more.
The only evidence Greene proffered that even conceivably suggests a retaliatory animus on the part of the Navy consists of the representation in her affidavit that she applied for summer jobs in 1996 and 1997 and was not hired although "another student, who had less experience and education was hired back" in 1996.
Greene's statement here is of just that conclusory sort. See Harding v. Gray, 9 F.3d 150, 154 (D.C.Cir.1993) (plaintiff "must support his allegations of superior qualifications with facts in the record; a mere unsubstantiated allegation of superior qualifications creates no genuine issue of fact and will not withstand summary judgment"). Absent supporting facts—and Greene provided none—a jury would be in no position to assess her claim of superiority. Accepting such conclusory allegations as true, therefore, would defeat the central purpose of the summary judgment device, which is to weed out those cases insufficiently meritorious to warrant the expense of a jury trial. Because Greene's claim of retaliation rests entirely upon a conclusory representation, the district court was right to dismiss it.
There is evidence in the record from which a reasonable juror could conclude that Clause harassed Greene. Furthermore, Greene's failure to seek assistance promptly after
On the other hand, there is not sufficient evidence in the record for a jury to conclude that the Navy's failure to rehire Greene was retaliatory. We have considered Greene's other arguments and find them to be without sufficient merit to warrant explication in a published opinion. Accordingly, the judgment of the district court is affirmed in part and reversed in part.