Broderick v. Donaldson

Decision Date10 February 2006
Docket NumberNo. 04-5404.,04-5404.
Citation437 F.3d 1226
PartiesCatherine A. BRODERICK, Appellant v. William B. DONALDSON, Chairman, Securities and Exchange Commission, Appellee.
CourtU.S. Court of Appeals — District of Columbia Circuit

Appeal from the United States District Court for the District of Columbia (No. 02cv00159).

Richard L. Swick argued the cause for appellant. With him on the briefs was Ellen K. Renaud.

Peter D. Blumberg, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Kenneth L. Wainstein, U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attorney. Michael J. Ryan, Assistant U.S. Attorney, entered an appearance.

Before: HENDERSON, ROGERS and BROWN, Circuit Judges.

Opinion for the Court filed by Circuit Judge BROWN.

BROWN, Circuit Judge.

Catherine Broderick filed suit against her employer, the Securities and Exchange Commission (SEC), alleging retaliation under Title VII of the Civil Rights Act of 1964 as well as violations of a 1988 court order issued in her previous sexual harassment suit against the SEC. The district court granted summary judgment against Broderick on the retaliation claim and declined to hold the SEC in contempt for the alleged violations of the order. Broderick now appeals both decisions.

We find the district court did not err in granting summary judgment to the SEC as Broderick has not stated a prima facie case of retaliation. Additionally, we find the district court did not abuse its discretion in deciding not to hold the SEC in contempt of the 1988 order. We therefore affirm.

I

Catherine Broderick won a sexual harassment suit against the SEC in 1988. Broderick v. Ruder, 685 F.Supp. 1269, 1280-81 (D.D.C.1988). After her victory, the district court entered an order entitling Broderick to a "promotion to GM-15," a "title commensurate with GM-15 status," and a

transfer to a position in the Division of Enforcement or the Office of the General Counsel at the agreed-upon GM-15 level, with appropriate work assignments, on-the-job training, evaluation standards, and increased responsibilities over time as she acquires the training and experience and as she demonstrates the capabilities to assume such responsibilities.

Broderick v. Ruder, No. 86-1834, 1988 WL 66210, at *1 (D.D.C. June 16, 1988). The order also specified that the SEC would provide two sets of performance standards, one detailing "the initial duties and responsibilities assigned to [Broderick] in light of her current training and experience," and the other setting forth "the full duties and responsibilities she will be expected to assume after she acquires the training and experience and demonstrates the proficiency necessary to assume those duties and responsibilities." Id. at *1 n. 1. Consistent with this order, Broderick (who had previously been employed as an attorney at the GS-13 level) was given a GM-15 position in the Appellate Group of the Office of the General Counsel, with the newly-created job title "counsel to the assistant general counsel." Broderick has remained in that position since 1988.

Broderick now claims she "did not get a fresh start in the Appellate Group," Appellant's Br. at 11, because "a lot of people" from that office attended her sexual harassment trial, and some were "associate[s]" of attorneys in her former office, id. at 11-12. Jacob Stillman, head of the Appellate Group, allegedly said at some point that Broderick was "here because of the lawsuit. And, you know, we didn't want her here but she's here. And she gets paid at this level and she can't do the work." Despite her unique title and higher pay grade, Broderick's duties, preparing first drafts of briefs, were essentially equivalent to those of a GS-13 staff attorney. A staff attorney's briefs are typically reviewed by an assistant general counsel or a senior litigation counsel, and then by either the solicitor (Stillman) or his deputy. Broderick's duties were also similar to those of a special counsel (a GS-14 position), except that a special counsel may at times supervise another attorney's work and may have his work reviewed directly by the solicitor or the deputy solicitor.

Broderick's performance evaluations for the years 1995-2000 all rated her as "outstanding" overall, the highest possible rating. In all six of those years, she was rated as "outstanding" in four of five categories: research, oral communications, writing, and compliance with administrative requirements. In the fifth category, analysis, she received an "exceeds fully successful" rating each year, the second-highest possible rating. As of 2000, Broderick was still being evaluated according to the initial set of performance standards that were drafted in response to the 1988 order.

At least four of Broderick's supervisors have stated that they do not think she should be in a supervisory position: Jacob Stillman ("I don't think that given those concerns [about her analysis] that she should be supervising people."), Katharine Gresham ("I doubt [Broderick could handle a supervisory role] ... [b]ecause she still needs to be supervised."), Mark Pennington ("[T]o the extent that being a senior litigation counsel required [a] supervisory role, ... I think [Broderick's] legal analysis wouldn't be strong enough."), and Randy Quinn ("I guess I would not feel completely comfortable" with Broderick supervising another attorney.). In 1996 and 1998, Broderick applied for vacant assistant general counsel positions but was not selected. On June 12, 1998, Broderick sent a memo to her supervisors in the Appellate Group and to the Office of Equal Employment Opportunity, complaining that she had been with the Appellate Group for ten years without being promoted. She requested "a change in job title and position commensurate with [her] seniority, experience, and outstanding performance appraisals." She also requested that her "career ladder be clarified, since it [was] unclear to [her] how [she was] expected to move into the supervisory ranks when the entry level is at the GS-14 level."

In December 1999, two senior litigation counsel vacancies in the Appellate Group were announced; Broderick submitted an application but was not selected. Hope Augustini and Rada Potts, two other Appellate Group attorneys, were chosen for the positions on February 8, 2000. Broderick was informed of the decision that same day, and she contacted an equal employment opportunity (EEO) counselor in order to complain. On June 8, 2000, Broderick, Jacob Stillman, and Katharine Gresham participated in a mediation session connected with Broderick's EEO complaint.

Broderick allegedly became "angry" and "unfriendly" toward Gresham after Gresham became aware of Broderick's EEO complaint. On July 13, 2000, Stillman sent Broderick a memo claiming that when Gresham tried to discuss the situation with Broderick, Broderick "became hostile, raised [her] voice, and made highly inappropriate comments about Katharine's mother and suggestions to Katharine that she seek psychological assistance." The memo cautioned Broderick that her "recent course of conduct toward Katharine Gresham [was] unacceptable and [was] inconsistent with the requirements of [her] performance standards." Broderick disputes this account, claiming that she merely responded to Gresham's request that they be friends. The memo was not placed in Broderick's personnel file, but the incident was subsequently mentioned in her 2001 evaluation.

II

Broderick filed suit against the SEC on January 29, 2002, claiming retaliation in violation of Title VII of the Civil Rights Act of 1964, as well as violations of the 1988 court order. She requested a finding of civil contempt against the SEC for violating the 1988 order, with compensatory damages of $300,000 plus interest, as well as additional monetary penalties until the SEC complied with the order. Broderick also requested a retroactive assignment to a management position with backpay and benefits, retroactive awards and bonuses, and corrections to her personnel file.

The SEC moved for summary judgment on Broderick's retaliation claim; the district court granted that motion on September 20, 2004. Broderick v. Donaldson, 338 F.Supp.2d 30, 48 (D.D.C.2004). The court held that Broderick had failed to exhaust her administrative remedies with respect to any allegedly adverse actions that occurred before December 24, 1999. Id. at 39-40. Next, the court held Broderick had failed to demonstrate a prima facie case of retaliation, because only the previous lawsuit qualified as a protected activity, only the denials of her applications for supervisory positions constituted adverse actions, and Broderick had not shown a causal connection between the first two elements. Id. at 40-44. Alternatively, the court found that even if Broderick had stated a prima facie case of retaliation, the SEC had proffered non-discriminatory justifications for its actions, which Broderick had not rebutted. Id. at 44-46.

The court also declined to hold the SEC in contempt for alleged violations of the 1988 court order. Id. at 46-47. Finding no proof of discriminatory motives, the court held that it could not review the SEC's determination that Broderick had not progressed professionally to the point where she should be given additional responsibilities. Id. at 46. Even assuming both that Broderick had made the requisite professional progress and that the court (rather than the SEC) should make the determination of such progress, the court found the language of the 1988 order too "subjective and imprecise" for a finding of civil contempt. Id. at 47. Finally, the court determined "the SEC's assessment of Broderick, as not yet possessing the requisite skills . . . [was] at least evenhanded and fair, and probably substantively correct." Id.

III

Federal Rule of Civil Procedure 56(c) provides that summary judgment is appropriate "if the...

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