Janet Allen v. Jeh Johnson ( 2015 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 25, 2014 Decided July 24, 2015
No. 13-5170
JANET E. ALLEN,
APPELLANT
v.
JEH CHARLES JOHNSON, SECRETARY OF HOMELAND SECURITY,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:09-cv-02228)
Ellen K. Renaud argued the cause for appellant. With her
on the briefs was David H. Shapiro.
Jeremy S. Simon, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Ronald C.
Machen Jr., U.S. Attorney, and R. Craig Lawrence, Assistant
U.S. Attorney.
Before: ROGERS, KAVANAUGH and PILLARD, Circuit
Judges.
Opinion for the Court filed by Circuit Judge PILLARD.
2
PILLARD, Circuit Judge: Plaintiff Janet Allen settled a
pair of employment discrimination claims against the
Department of Homeland Security, but soon began to suspect
that her new supervisor, Kathy Hill, was retaliating against
her for having asserted her rights. Allen’s next performance
rating was lower than she thought it should be, and she was
not invited to meetings in which she thought she should be
included as part of her job overseeing the internal financial
control systems at U.S. Immigration and Customs
Enforcement (ICE), an agency within the Department of
Homeland Security. Allen filed this suit claiming Hill
retaliated against her for the earlier discrimination complaints.
The Department moved for summary judgment, asserting that
Hill’s explanations of her actions were legitimate and non-
retaliatory. Hill justified the performance ratings on the
ground that Allen, a managerial employee, failed adequately
to supervise ICE’s specialized satellite offices and external
contractors, leading to delays on two projects and a complaint
from one of the satellite offices. Hill also attested that Allen
was never excluded from meetings at which her presence was
required and that, if Allen had thought otherwise, she could
have asked to attend meetings, but never did. Allen claimed
that her own disagreement with Hill’s assessment of her
performance and with Hill’s decisions about who to include in
meetings created triable issues precluding summary judgment.
Because we conclude that the proffered facts could not, if
presented at trial, support a jury verdict that retaliation was
Hill’s real motive for the actions of which Allen complains,
we affirm the district court’s grant of summary judgment in
favor of the Department.
I. BACKGROUND
Relevant background to the current retaliation case began
over a decade ago, when Allen worked as a Director of
3
Financial Management at ICE, overseeing financial systems
there and at five other bureaus within the Department of
Homeland Security. Allen v. Napolitano (“Allen I”), 774 F.
Supp. 2d 186, 191 (D.D.C. 2011). In 2006, Allen filed an
EEO complaint alleging a hostile work environment,
discrimination on the basis of sex, age, and disability, and
retaliation. Id. at 191-92. After Allen filed her first
complaint, ICE reassigned her from that position to a posting
as Director of Internal Controls in ICE’s Office of Assurance
and Compliance (OAC). See id. at 192. OAC evaluates and
develops plans to improve ICE’s internal financial controls
and reports the results of internal control testing and other
audit activities within the Department. Allen’s job at OAC
was to supervise certain financial controls tests and functions,
including by managing contracts with outside accounting
firms. Allen v. Napolitano (“Allen II”), 943 F. Supp. 2d 40,
43-44 (D.D.C. 2013). Allen filed a second EEO complaint in
2007 alleging that her reassignment to OAC was retaliatory.
See Allen I, 774 F. Supp. 2d at 192.
In February 2008, the Department entered into a
settlement agreement with Allen resolving her 2006 and 2007
complaints. Id. The settlement obligated ICE to give Allen a
step promotion, provide her back pay, attorneys’ fees and
costs, and, based on a list of Allen’s accomplishments, change
her performance reviews for 2005–2007 to award her the
highest performance rating. Id. Kathy Hill, Allen’s new
supervisor following her reassignment to OAC, held the
position of Acting Director of OAC. The Department charged
Hill with implementing the performance rating adjustments
under the settlement agreement.
In this suit, Allen alleges that Hill and others retaliated
against her in violation of Title VII of the Civil Rights Act of
1964 (codified as amended at 42 U.S.C. § 2000e et seq.), by
4
giving her an unfavorable performance review in 2008 (the
fiscal year after the three covered by the settlement), and
excluding her from important meetings to which Allen alleges
she should have been invited.1
The district court granted summary judgment to the
Department. The Department supported its motion by
showing that the unfavorable performance ratings were based
on Hill’s determination that Allen failed adequately to oversee
contractors and agency satellite offices whose compliance she
supervised, missed deadlines for two projects, and that Hill
did not exclude Allen from any meetings at which Hill
understood her presence to be warranted. Allen argued that
each of the Department’s reasons was “unworthy of
credence,” see Jones v. Bernanke, 557 F.3d 670, 678 (D.C.
Cir. 2009) (internal quotation marks omitted), and was put
forward as a pretext for intentional retaliation. She disagreed
with Hill’s assessment of her performance on various
projects, and contended, with some support from contractors’
employees, that projects she supervised had been discussed at
meetings without her. The court held that Allen failed to
rebut the Department’s justifications for her performance
ratings, Allen II, 943 F. Supp. 2d at 48-52, and that the
claimed exclusions from meetings were not actionable
employment decisions, id. at 45-47.
On appeal, Allen challenges the grant of summary
judgment on those claims. We review de novo the district
court’s decision. McGrath v. Clinton, 666 F.3d 1377, 1379
(D.C. Cir. 2012).
1
The district court had earlier entered partial summary judgment on
other retaliation claims not at issue here. See Allen I, 774 F. Supp.
2d at 206.
5
II. LEGAL STANDARD
Summary judgment is appropriate only if there is “no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed R. Civ. P. 56(a).
At summary judgment, the court must avoid weighing the
evidence and making credibility determinations. We instead
assume all conflicts would be resolved and all inferences
drawn in the nonmoving party’s favor and inquire whether, on
the evidence so viewed, “a reasonable jury could return a
verdict for the nonmoving party.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986).
Title VII prohibits federal agencies from discriminating
against their employees on the basis of race, color, religion,
sex, or national origin, 42 U.S.C. § 2000e-16(a), and forbids
retaliation against an employee because she has “opposed any
practice made an unlawful employment practice by” Title VII,
or because she “made a charge” under Title VII, id. § 2000e-
3(a).2 To prove unlawful retaliation, an employee must
establish three elements: that she made a charge or opposed a
practice made unlawful by Title VII, that the employer took a
materially adverse action against her, and that the employer
took the action because of her protected conduct. McGrath,
666 F.3d at 1380. Our analysis at summary judgment tracks
that of the trier of fact at trial. In other words, a plaintiff
seeking to defeat summary judgment on her retaliation claim
must point to evidence from which a reasonable juror could
2
Title VII contains separate provisions, slightly differently worded,
prohibiting discrimination by private employers and governmental
agencies, but this court has construed them as imposing the same
restrictions and cites the cases construing them interchangeably.
George v. Leavitt, 407 F.3d 405, 411 (D.C. Cir. 2005).
6
conclude that the employer took adverse employment action
against her in retaliation for her protected activity.
Cases asserting unlawful retaliation in violation of Title
VII typically depend on circumstantial evidence of retaliatory
motive. Direct evidence of reprisal—such as a statement by a
managerial employee that she or he took action because an
employee had filed a charge of discrimination—is the
exception rather than the rule.3 A Title VII plaintiff may raise
a preliminary, circumstantial inference of prohibited motive
through the burden-shifting framework of McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973). Under
McDonnell Douglas, a retaliation plaintiff need only show
that she engaged in protected activity, that she suffered an
adverse employment action, and that there was a causal link
between the former and the latter. Hamilton v. Geithner, 666
F.3d 1344, 1357 (D.C. Cir. 2012). The function of the prima
facie case is to trigger the employer’s burden to come forward
with its actual legitimate, non-retaliatory reason for the
challenged action. If the employer fails to do so, the
employee is entitled to judgment.
Once the employer proffers a non-retaliatory reason for
the challenged employment action, the burden-shifting
framework falls away, and the “central question” becomes
whether “the employee produced sufficient evidence for a
reasonable jury to find that the employer’s asserted non-
discriminatory [or non-retaliatory] reason was not the actual
reason and that the employer intentionally discriminated [or
3
An example of that rare case is Forman v. Small, in which the
recommending official stated that he did not make a promotion
recommendation because the plaintiff “had already filed an EEO
complaint” over an earlier non-promotion. 271 F.3d 285, 290, 300
(D.C. Cir. 2001).
7
retaliated] against the employee.” Brady v. Office of Sergeant
at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008); see Jones, 557
F.3d at 678 (applying Brady to retaliation claim).4 A key
component of retaliation cases, in common with
discrimination claims, is thus the battle over pretext. This is
the posture of Allen’s case: the Department has put forth its
reasons for the actions that Allen claims constitute retaliation.
The question is thus whether those reasons are the actual
reasons, or whether they are a mask for retaliation.
A plaintiff opposing summary judgment may raise an
inference that the employer’s purpose was retaliatory by
pointing to evidence attacking the employer’s proffered
reasons, together with other evidence, if any, suggesting that
retaliation was the real reason. Whether the available
evidence suffices to support a jury finding of retaliation will,
necessarily, be a contextual judgment.
There are multiple ways in which circumstantial evidence
may support an inference that an employer’s stated reason for
a challenged employment action was not the actual reason,
and that the real reason was prohibited discrimination or
retaliation. The temporal proximity of an adverse action close
on the heels of protected activity is a common and highly
probative type of circumstantial evidence of retaliation. See
4
To say that the burden-shifting framework falls away under Brady
is not to suggest that the evidence supporting the prima facie case
loses relevance. See Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133, 143 (2000) (noting that, “although the presumption
of discrimination ‘drops out of the picture’ once the defendant
meets its burden of production, the trier of fact may still consider
the evidence establishing the plaintiff’s prima facie case ‘and
inferences properly drawn therefrom on the issue of whether the
defendant’s explanation is pretextual’”) (citations, ellipsis omitted).
8
Hamilton, 666 F.3d at 1357-59. Other common ways of
proving invidious motive—whether retaliation or
discrimination—include pointing to evidence that the
employer treated other, similarly situated employees better;
that the employer is “lying about the underlying facts” of its
decision; that there were “changes and inconsistencies” in the
employer’s given reasons for the decision; that the employer
failed to “follow established procedures or criteria”; or that
the employer’s “general treatment of minority employees”
(or, in the retaliation context, employees who asserted their
Title VII rights) was worse than its treatment of non-
minorities (or employees who did not assert their Title VII
rights). Brady, 520 F.3d at 495 & n.3. Invidious motive may
also be inferred from “‘an error too obvious to be
unintentional.’” Grosdidier v. Broad. Bd. of Governors, 709
F.3d 19, 26 (D.C. Cir. 2013) (quoting Fischbach v. D.C.
Dep’t of Corr., 86 F.3d 1180, 1183 (D.C. Cir. 1996)).
Typically, successful rebuttal of an employer’s stated
reason counts as evidence of the invidious motive that is a
required element of a disparate treatment or retaliation claim.
George v. Leavitt, 407 F.3d 405, 413 (D.C. Cir. 2005). As
just noted, it is often reasonable to think that an employer who
lies or obviously bluffs about or shifts its rationale for
challenged action is culpable of the charged discrimination or
retaliation. Evidence that an employer’s proffered reasons are
“unworthy of credence,” Jones, 557 F.3d at 678 (internal
quotation marks omitted), has “considerable evidentiary
significance” because “a lie is evidence of consciousness of
guilt,” Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1292-93
(D.C. Cir. 1998) (en banc); see also Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 147 (2000). But that is
not inevitably the case. Successfully attacking an employer’s
proffered reason “alone will not always suffice to permit an
inference of discrimination.” Aka, 156 F.3d at 1292; see also
9
St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993).
Under the standard for judgment as a matter of law, which
tracks the standard for summary judgment, the Supreme Court
has observed that judgment in an employer’s favor is
appropriate where the plaintiff’s evidence calling the
employer’s proffered reason into doubt is weak, and the
record also contains “abundant and uncontroverted
independent evidence that no discrimination had occurred.”
Reeves, 530 U.S. at 148 (citing Aka, 156 F.3d at 1291-92).
We have also recognized that summary judgment against the
plaintiff is appropriate if the plaintiff’s showing of fabrication
by her employer “conclusively demonstrates that the real
explanation for the employer’s behavior is not discrimination,
but some other motivation.” Aka, 156 F.3d at 1290-91.
This case addresses a particular kind of contest over
pretext: Disagreement between a middle manager and her
immediate supervisor over the validity of discretionary
judgments about the subordinate’s job performance. Title VII
requires us to be vigilant in smoking out unlawful motives
while remaining “reluctan[t] to become involved in the
micromanagement of everyday employment decisions.”
Forman v. Small, 271 F.3d 285, 291 (D.C. Cir. 2001). There
were no relevant comparators under Hill’s direct supervision.
There was no established track record of Hill’s treatment of
Allen before she filed her EEO complaints, because it was
only thereafter that Allen was transferred and placed under
Hill’s supervision. There are no witnesses other than Allen
whose testimony supports her claims. Allen’s testimony is
itself competent evidence, of course, but the facts that it seeks
to call into question are Hill’s judgments as to whether Allen
was a sufficiently communicative and active manager, and
which of Hill’s meetings would address technical aspects of
contracts under Allen’s purview such that Allen should be in
attendance. In other words, each is very much a discretionary
10
judgment call about one manager’s supervision of another.
Invidious motive is especially tricky to establish in such
circumstances because judicially wieldy metrics of fair
treatment are difficult for plaintiffs to establish. It is where
the non-retaliatory or non-discriminatory baseline is elusive
of proof that courts are most apt to hesitate to invade
employers’ discretion in workplace management. See
Fischbach, 86 F.3d at 1183. “If the employer’s stated belief
about the underlying facts is reasonable in light of the
evidence,” and is honestly held, there ordinarily is no basis to
put the case to a jury, even if the employee disagrees with the
discretionary decision the employer made. Brady, 520 F.3d at
495; see George, 407 F.3d at 415.
III. ANALYSIS
Allen urges us to find that the Department unlawfully
retaliated against her in the months following the settlement
of her earlier discrimination and retaliation claims, but the
evidence falls short of raising an inference of retaliatory
purpose. Allen claims she deserved a higher performance
rating than the one Hill gave her and that she should have
been invited to certain meetings that she asserts were essential
to her job duties. Allen has explained why she disagrees with
Hill’s proffered justifications for the challenged actions, but
mere disagreement with an employer about reasonable
judgments concerning the employee’s evaluation and meeting
participation—judgments that are especially subject to
managerial discretion—is not enough to sustain a Title VII
claim. Allen must identify facts from which a reasonable jury
could conclude that Hill’s justifications for the contested
performance rating and meeting-composition decisions were
not her real reasons, but were instead pretexts for retaliation.
Because Allen has not raised a genuine dispute of fact as to
whether Hill honestly and reasonably believed the legitimate,
11
non-retaliatory reasons she gave for her treatment of Allen,
the district court did not err in granting the Department’s
motion for summary judgment.
A. Performance Review
Allen’s 2008 performance review period began in
October 2007 and ended September 30, 2008. Hill rated
Allen on four “performance goals.” Of those four goals,
Allen received the highest rating (Achieved Excellence) on
two of them, but only the next-highest rating (Exceeded
Expectations) on another, and the third-from-highest rating
(Achieved Expectations) on a fourth. Her overall rating—
combining scores on her achievement of those four goals with
scores on seven “core competencies”—was at the Achieved
Expectations level. Allen challenges two of her performance
goal ratings, which affected her overall rating, and Hill’s
failure to provide Allen a mid-year performance review as
unlawful retaliation.
1. Performance Goal 2. Allen contends that she
deserved a rating of Achieved Excellence rather than
Exceeded Expectations on Performance Goal 2, regarding her
performance in preparing ICE for a 2009 audit. 2008 Perf.
Rev., J.A. 183, at 3-5. The Department gave two reasons for
the rating.
First, Hill wrote in Allen’s performance review that Allen
failed to communicate adequately with “subject matter
experts” over her changes to documentation relating to budget
and payroll systems. Id. at 14-15. The “subject matter
experts” at issue were at ICE’s finance center in Burlington,
Vermont, where invoices are paid and payments to ICE are
processed. See Allen Decl., J.A. 559 ¶¶ 3-4. According to
Hill, the finance center complained that Allen made changes
to drafts of documents without consulting them or explaining
12
the changes, resulting in confusion at the finance center as to
how to respond. Hill Decl., J.A. 478 ¶ 17. Allen has not
disputed that the finance center complained. Instead, she
argues that the complaint was not her fault, because, she says,
Hill never notified her of the requirement that she collaborate
with the finance center. But Performance Goal 2 of Allen’s
performance plan—which Hill developed with Allen’s
detailed input and review—required Allen to collaborate with
the ICE “Program Offices” to ensure a successful audit. 2008
Perf. Rev. at 3-4. Allen asserts Hill’s definitions were
ambiguous and made it unclear what her responsibilities were
in dealing with the Burlington Finance Center, but Hill avers
that ICE finance centers were routinely referred to as both
“Program Offices” (components within ICE) and “subject
matter experts” (entities whose staff were most
knowledgeable about the processes Allen was evaluating),
and thus were clearly entities included in Allen’s Performance
Goal. Hill Decl. ¶ 9. Allen provides no further response to
Hill’s assertions that Allen knew or should have known that
the Burlington Finance Center was among the entities with
which she was expected to communicate.
Allen also argues that it would have been inappropriate to
communicate at that time with the Burlington Finance Center
about the 2009 audit because that center was the subject of the
audit Allen was managing, and “[a]s a general matter, an
auditee does not have input into the auditor’s evaluation of
their work.” Allen Decl. ¶ 4. But Allen identifies no
evidence showing that she was auditing the Burlington
Finance Center, and the Department’s evidence refutes that
contention. See Supp. Hill Decl., J.A. 563 ¶ 4 (“While our
office did audit-related work, the ultimate audit was
performed by KPMG.”). Even if Allen were correct that it
would have been inappropriate for her to collaborate with the
finance center, there is no evidence that she brought any such
13
concern to Hill’s attention. And even if Allen had established
that her Performance Goal did not encompass collaborating
with the finance center, she has failed to identify a material
issue of fact in dispute because she points to nothing that
suggests that Hill’s putative error on that score was either
dishonest or unreasonable. Allen’s effort to dispute the scope
of her duties as a basis for the challenged performance rating
thus raises no inference of retaliatory motive. To the
contrary, after having maintained throughout this litigation
that she was not aware that collaboration was required, and
that any collaboration with the finance center would have
been inappropriate, Allen asserts in her reply brief that she did
in fact collaborate with the finance center. Allen Reply Br.
13.
Hill provided a second, independent justification for the
Performance Goal 2 rating: delays in the administration of an
internal financial control test called the “Test of Operating
Effectiveness.” Hill wrote in Allen’s performance review that
Allen failed adequately to oversee and coordinate with
PricewaterhouseCoopers, an ICE contractor working on the
test. 2008 Perf. Rev. at 15. Hill “believed that if [the project]
had been managed effectively, it could have been completed
in the original deadline[].” Hill Decl. ¶ 18. Allen claims the
delays were actually due to “a significant expansion of the
scope of the project midway through”—an expansion Allen
says she recommended against. Allen Decl. ¶ 5. She
produced no evidence, however, that Hill lacked grounds for
expanding the project, let alone that Allen predicted and
timely advised steps to avoid the delays she concedes befell
the project. Hence, she has failed to identify any material
factual dispute about the validity of Hill’s criticism.
Allen also claims that Hill excluded her from meetings
with PricewaterhouseCoopers, and that those exclusions
14
contributed to any “lack of oversight and coordination” of that
contractor’s work. The meetings from which Allen claims
she was excluded occurred after the 2008 review period
closed, however, and are therefore irrelevant to her challenge
to the performance ratings. Allen’s suggestion that she did, in
fact, fail adequately to coordinate with the contractors, but
that it was Hill’s fault she did so, undermines her argument
that no lack of coordination occurred and that the delays were
due to the expanded scope of the project. In sum, Allen has
not identified record evidence upon which a reasonable jury
could conclude that Hill’s rating of Allen on Performance
Goal 2 was done in retaliation for Allen’s prior protected
conduct.
2. Performance Goal 3. Hill asserted that Allen’s rating
of Achieved Expectations on Performance Goal 3, rather than
the Achieved Excellence rating Allen believed she deserved,
was similarly based on her evaluation of Allen’s oversight of
ICE finance centers during a project that required the
collection of documents from those centers for testing; delays
in document collection resulted in delays in the overall
project. See 2008 Perf. Rev. at 5, 15; Hill Decl. ¶ 4. Allen
does not dispute that the project delays were caused by a
failure to get the documents from the finance center in a
timely manner. Indeed, Allen initially blamed the delays on
Hill, who Allen says made the “high risk decision” of
assigning the testing work to the finance centers rather than to
the two employees at the Office of Assurance and
Compliance whom Allen directly oversaw. J.A. 510. Later,
Allen blamed her subordinate, Melissa Crane, for the same
delays, on the ground that Crane “was assigned as the project
leader.” J.A. 518. Allen avers that she did not intervene
earlier because Crane never informed her of any problems.
But the record shows that Allen was aware at least two
months in advance that her office was having difficulty
15
getting the documents. See J.A. 511, 516. Allen made little
progress to remedy the situation in those intervening months.
Hill claims she personally had to “intervene in the situation
and direct the efforts to locate the missing documentation to
resolve the situation.” Hill Decl. ¶ 21. Despite that “crisis,”
Hill gave Allen the Achieved Expectations rating and not a
lower mark because, once arrangements were made to adjust
the deadline, Allen was able to meet it. Id. Even if Allen
were right that the delays were really caused by Hill’s “high
risk decision” or Crane’s failure to inform Allen of the
problems sooner, as a manager, Hill reasonably expected
Allen to diagnose, communicate over, and forestall problems;
record evidence raises no inference that Hill’s judgments that
Allen had failed adequately to do so were unreasonable or
dishonest.
Allen also claims a jury could infer retaliation based on
the fact that Hill approved the highest level rating for Crane,
meaning that Crane received a higher rating than Allen for
their work on the same project. Hill thought it was reasonable
to rate Allen’s subordinate more highly than Allen herself
because it was Allen, not her subordinate, who had
managerial responsibility. Allen II, 943 F. Supp. 2d at 51; see
also Hill Decl. ¶ 22 (justifying rating on grounds that Allen
“needed to take ownership, and not seek to deflect
responsibility to those that she supervised”). Although Allen
disagrees with the rating difference on its merits, she
identifies no reason to question the genuineness of Hill’s
stated justification for the differential ratings.
3. Mid-Year Review. Allen also argues that Hill
deviated from established Department of Homeland Security
personnel procedure by failing to give Allen a mid-year
performance review in the 2008 fiscal year, casting doubt on
the authenticity of the reasons given for her performance
16
ratings. The record demonstrates that, under ordinary
circumstances, supervisors were expected to give mid-year
reviews. Keenan Dep., J.A. 311, at 37. Allen’s evidence also
shows that mid-year reviews were called for “halfway through
the rating period,” id., but that Allen’s performance plan was
not finalized until May 2008, almost eight months into the
performance period, Pl. St. Mat. Facts, J.A. 544 ¶ 8; Hill
Decl. ¶ 11. Allen did not introduce evidence demonstrating
that, under those circumstances, Department policy called for
a mid-year review, and the Department has consistently
maintained otherwise. Consequently, she has failed to raise a
genuine dispute of material fact concerning her claim that Hill
deviated from established procedures.
* * *
Nothing in the record suggests that Hill did not genuinely
and reasonably believe she made the right decision in the
performance ratings she assigned to Allen, and in providing
no mid-year review while the parties were negotiating Allen’s
performance goals. Given the lack of evidence tending to
undermine the reasons given by Hill, summary judgment in
favor of the Department on Allen’s performance ratings claim
was warranted.
B. Meeting Exclusions
We also affirm the grant of summary judgment for the
Department on Allen’s claim of retaliatory exclusion from
meetings, but on grounds different from the district court’s.
Because Allen failed to create any material factual dispute
about the legitimate, non-retaliatory reasons the Department
proffered, we do not address the question whether the
challenged actions were insufficiently consequential to count
as materially adverse, and thus adequate to support a claim of
unlawful retaliation.
17
Allen lists a battery of meetings to which the Department
concedes she was not invited. According to Hill, she did not
include Allen in the listed meetings because they involved
subjects that were not part of Allen’s assigned duties, were
high level meetings between Hill and her superiors at which
Allen’s presence was not appropriate, or were convened by
Hill’s superiors or others, not Hill. She also points out that
Allen could have sought to participate in the meetings, but
never did. Allen Dep., J.A. 358, at 33:13-34:17 (Aug. 14,
2012); see also Hill Decl. ¶ 33. Allen fails to identify
evidence materially disputing Hill’s explanations.
Allen focuses primarily on Hill’s meetings with ICE
contractor PricewaterhouseCoopers. She says the meetings
involved discussions of ongoing work on a contract for which
Allen was the Contracting Officer’s Technical Representative
(COTR), and that such discussions would have been
inappropriate in the COTR’s absence. Hill conceded the
meetings took place, but said that they were held to discuss
potential future business opportunities—a kind of meeting
Allen acknowledges would not require her presence. Allen
Dep. at 79:21-80:4. Allen maintains that Hill impermissibly
discussed the ongoing PricewaterhouseCoopers contract at
some of those meetings, and that two contractors complained
to her that Hill had discussed the ongoing work in meetings.
Id. at 76-77, 96.
The Department objects that Allen’s testimony
concerning what attendees told her about meetings is
inadmissible hearsay. Def. Br. 57. Allen has made no effort
to demonstrate that she could introduce the evidence in an
admissible form at trial, such as through the testimony of the
attendees themselves. See Greer v. Paulson, 505 F.3d 1306,
1315 (D.C. Cir. 2007). The Department did not raise a
hearsay objection before the district court, however, so that
18
objection is not preserved. See Catrett v. Johns-Manville
Sales Corp., 826 F.2d 33, 37-38 (D.C. Cir. 1987); 10A
Charles Alan Wright & Arthur R. Miller, Federal Practice &
Procedure § 2722 (3d ed. 2015). In any event, Allen’s
recounting of what the contractors told her is corroborated by
Hill’s concession that “sometimes” contractors would update
Hill on the status of ongoing work in Allen’s absence. Hill
Dep., J.A. 266, at 153:1-11. Hill thus may have breached
protocol on occasion by discussing ongoing work without
Allen, the COTR, in attendance.
Departure from established procedures can be probative
of pretext, Brady, 520 F.3d at 495 n.3, but none of Allen’s
evidence suggests that Hill’s alleged violation was any kind
of conscious evasion. Allen does not assert that Hill lied
about the content of the meetings or covered up what
happened during them, or that Hill did not honestly and
reasonably believe that she acted appropriately. If a
supervisor’s “stated belief about the underlying facts is
reasonable in light of the evidence, . . . there ordinarily is no
basis for permitting a jury to conclude that the employer is
lying about the underlying facts.” Id. at 495.
Allen’s evidence concerning the remaining meetings also
falls short. Hill met with ICE contractor Deloitte & Touche
on subjects over which Allen had no responsibility. Allen
Dep. at 24:5-12. And when Hill talked with Department
personnel over the phone or in person without prior planning
about matters relevant to Allen’s responsibilities, she did not
hide those meetings, but reported to Allen about them by
e-mail. See J.A. 538 (Whalen meeting), 539 (Wetklow
meeting), 542 (Mason meeting). Finally, nothing in the
record supports Allen’s contention that she should have been
included in the high level meeting in December 2008 relating
to the “Senior Advisory Team.”
19
Allen contends that we may infer pretext from Hill’s
reliance on post-hoc rationales for the meeting exclusions.
She asserts that Hill was unable during her deposition to
explain her failure to invite Allen to the meetings, but that,
when the Department moved for summary judgment ten
months later, Hill submitted a declaration detailing reasons
she had not mentioned previously. Allen Br. 35-36. Allen
seeks to rely on our recognition that “changes and
inconsistencies in the stated reasons for the adverse action”
may give rise to an inference of pretext. Brady, 520 F.3d at495 n.3. The record in this case, however, belies any
inconsistency such as would raise an inference that the
Department’s proffered reasons were invented post hoc to
cover up retaliatory motives. Hill’s 2009 EEO declaration,
signed three years before Hill’s deposition, details several of
the explanations that the Department now advances in
litigation. Allen quibbles with the phrasing of some of those
explanations, but Hill’s EEO declaration and her summary
judgment declaration are consistent in all material aspects.
Moreover, Allen mischaracterizes Hill’s purported failure to
explain the meetings during her deposition. During the
deposition, Hill repeatedly said that the bases for her
decisions whether to invite Allen to a meeting depended on
the specific meeting at issue, and frequently said that she did
not understand Allen’s counsel’s confusing questions. See,
e.g., Hill Dep. at 130:22-131:1, 132:12-13, 132:17, 133:16,
137:2-8. When counsel asked her clearly about specific
meetings, Hill had no difficulty explaining her decisions. See,
e.g., id. at 153:1-3. With respect to the few, truncated
deposition excerpts regarding meeting attendance that are part
of the record, Hill’s explanations did not differ from those she
gave both in her earlier EEO declaration and in her later
summary judgment declaration.
20
Allen has failed to rebut Hill’s proffered legitimate, non-
retaliatory reasons for not inviting Allen to certain meetings.
Hill has pointed to evidence from which a jury could conclude
that she honestly and reasonably believed Allen’s presence
was either not required or inappropriate. Allen has failed to
identify evidence from which a reasonable jury could not only
disbelieve Hill’s reasons, but conclude that the real reason
Hill did not invite Allen to certain meetings and engaged in
discussions about the ongoing contract work without Allen
present was to retaliate against Allen for her protected
activity.
C. Other Allegations of Retaliation
Allen cites as further support for her retaliation claim
incidents over and above the acts that she has identified as
actionable adverse treatment, i.e., the performance ratings and
non-inclusion in meetings. Allen contends that Hill’s
antagonism toward her began immediately upon Hill
becoming aware of Allen’s settlement of her earlier
discrimination and retaliation claims. It fell to Hill, as Allen’s
new supervisor, to implement the settlement agreement.
Allen contends that Hill did so in a grudging manner that,
“while technically in compliance with the settlement
agreement, may be viewed by a jury as intentionally designed
to retaliate” against Allen. Allen Reply Br. 7. Allen asserts
that Hill’s approach to implementation of the settlement tends
to show Hill’s retaliatory motive and, together with the other
evidence, supports her claim of unlawful reprisal. Allen also
relies on the “entire course of Hill’s treatment of Allen . . .
beg[inning] almost immediately after Hill learned that Allen
had engaged in EEO activity” to show such a motive. Id. at 8.
It is well established that evidence of a pattern of
antagonism following closely on the heels of protected
21
activity and related to the challenged employment action may
establish the causation element of a Title VII plaintiff’s prima
facie case. See Hamilton, 666 F.3d at 1357-59 (holding the
requisite causation showing was made where plaintiff “was
denied information about a possible detail just two months
after filing an EEO complaint and, approximately one month
later, was ultimately passed over for the detail”). Evidence
that a supervisor was repeatedly hostile toward an employee,
beginning shortly after the supervisor learned of the
employee’s protected activity, is bound to be more probative
than evidence of general hostility without any such temporal
proximity.5
5
This court has also suggested that a pattern of negative, on-the-job
treatment could add up to a materially adverse employment action,
even if any one of the employer’s complained-of acts would not
alone count as materially adverse. See Mogenhan v. Napolitano,
613 F.3d 1162, 1166 (D.C. Cir. 2010) (applying Title VII
framework to Rehabilitation Act claim and noting that two
employment actions, “perhaps alone but certainly in combination—
suffice” to satisfy the statutory requirement that employment action
be materially adverse); cf. Taylor v. Solis, 571 F.3d 1313, 1332
(D.C. Cir. 2009) (Rogers, J., dissenting) (“[R]etaliation can involve
a thousand cuts . . . . Where one of those cuts was a materially
adverse action, it blinks reality to suggest the other 999 shed no
light on whether that cut was intentional and retaliatory.” (internal
citation and quotation marks omitted)). That aggregation principle
makes no difference here, however, because we have assumed for
purposes of this appeal that each of the challenged actions upon
which Allen relies was materially adverse. We thus need not
decide whether considering all her allegations together pushes the
other activity Allen describes over the line to count as materially
adverse employer conduct such as might have dissuaded a
reasonable employee from making or supporting an equal
employment claim. Our decision does not turn on any shortfall in
22
We have also held, however, that the fact that employer
adverse action follows closely after an employee’s protected
assertion of rights is not, by itself, always enough to survive
summary judgment. Title VII does not prohibit antagonism in
the workplace. Once an employer has put forth legitimate,
non-retaliatory reasons for a challenged action, “‘positive
evidence beyond mere proximity is required to defeat the
presumption that the proffered explanations are genuine.’”
Hamilton, 666 F.3d at 1359 (quoting Woodruff v. Peters, 482
F.3d 521, 530 (D.C. Cir. 2007)); see also Talavera v. Shah,
638 F.3d 303, 313 (D.C. Cir. 2011); Hughes v. Derwinski,
967 F.2d 1168, 1174-75 (7th Cir. 1992). In Woodruff, we
explained in an analogous context that, “[i]f temporal
proximity sufficed to rebut a legitimate proffer, then protected
activities would effectively grant employees a period of
immunity, during which no act, however egregious, would
support summary judgment for the employer in a subsequent
retaliation claim.” 482 F.3d at 530.
Here, Allen disagrees with Hill’s reasons for her
performance review and non-inclusion in various meetings.
Those adverse actions occurred nine months after the
settlement of Allen’s earlier claims. As discussed above,
Allen’s rebuttal efforts have not succeeded in raising material
factual disputes over the Department’s proffered legitimate,
non-retaliatory reasons. Adding to the mix consideration of
Hill’s assertedly compliant but hostile implementation of the
settlement agreement several months before the challenged
adverse acts does not tip the balance in favor of making it
plausible that the real reason Hill acted as she did was to get
back at Allen for having sued. Nor does adding the other
Allen’s showing of adverse action; what we have concluded is
wanting is evidence of retaliatory motive.
23
incidents of antagonism to which Allen points as evidence of
retaliatory motive, such as Hill’s failure timely to submit a
recommendation for Allen for a professional opportunity,
support an inference of retaliation. See Allen Br. 7, 33.
In sum, even assuming that a jury were to credit Allen’s
contentions that Hill implemented the settlement agreement
and took other actions in a hostile manner, we do not believe
that a reasonable jury could conclude that any adverse action
of which Allen complains in this case—the performance
ratings and non-inclusion in meetings—was taken in
retaliation. As we have discussed, we have reviewed the
record evidence and have concluded that Allen has not carried
her burden to raise an inference that a reasonable jury could
credit that Hill’s proffered reasons for her evaluation of
Allen’s work in 2008 and her decisions about meeting
attendance were false, and that the real reason was to retaliate
against Allen for her earlier, protected activity.
* * *
For the foregoing reasons, the judgment of the district
court is affirmed.
So ordered.