Taylor v. Solis

• Decision Date: 10 July 2009
• Docket Number: No. 07-5401.,07-5401.
• Citation: 571 F.3d 1313
• Parties: Ruby TAYLOR, Appellant v. Hilda L. SOLIS, Secretary of Labor, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

571 F.3d 1313

Ruby TAYLOR, Appellant v. Hilda L. SOLIS, Secretary of Labor, et al., Appellees.

No. 07-5401.

United States Court of Appeals, District of Columbia Circuit.

Argued November 14, 2008.

Decided July 10, 2009.

Appeal from the United States District Court for the District of Columbia (No. 03cv01761).

Richard L. Swick argued the cause for appellant. On the briefs were David H. Shapiro and Alana M. Hecht.

Kenneth Adebonojo, Assistant U.S. Attorney, argued the cause for appellees. With him on the brief were Jeffrey A. Taylor, U.S. Attorney, R. Craig Lawrence, Assistant U.S. Attorney, and Judith R Starr, Counsel, Pension Benefit Guaranty Corporation.

Before: GINSBURG, HENDERSON and ROGERS, Circuit Judges.

Opinion for the Court filed by Circuit Judge GINSBURG.

Dissenting opinion filed by Circuit Judge ROGERS.

GINSBURG, Circuit Judge:

Ruby Taylor, an African-American woman, sued her employer, the Pension Benefit Guaranty Corporation, under Title VII of the Civil Rights Act of 1964, claiming her supervisors sexually harassed her to the point of creating a hostile work environment and, when she complained, retaliated against her. The district court granted summary judgment to the Corporation because it concluded, as a matter of law, (1) the employer had an affirmative defense to Taylor's claim of sexual harassment and, (2) with regard to retaliation, Taylor (a) had not offered a prima facie showing that her protected activity caused most of the alleged acts of retaliation, (b) had failed to show one such act was a materially adverse action, and (c) had failed to rebut the Corporation's nondiscriminatory explanation of another. We affirm, holding as a matter of law that the PBGC has an affirmative defense to the claim of sexual harassment and that Taylor has failed to meet her burden regarding the claim of retaliation.

I. Background

We accept as true the evidence offered by, and draw all reasonable inferences in favor of, Taylor, who at all relevant times was an auditor in the Pre-Termination Process Division (PPD) of the PBGC.^* Taylor's direct supervisor was Jonathan Henkel, who oversaw all the auditors in the PPD. Robert Bacon oversaw all the financial analysts in the PPD. Bacon and Henkel reported to Robert Joy, the manager of the PPD, who reported to Bennie Hagans, Director of the Insurance Operations Department (IOD).

The Corporation's policy against sexual harassment directs employees who believe they have been sexually harassed "immediately [to] contact an EEO Counselor or the EEO Manager," who is to investigate the charge of harassment and, if warranted, implement an appropriate remedy. The policy also states the "PBGC's managers and supervisors have a particular responsibility for providing a work environment free of ... sexual harassment."

Taylor alleges her supervisors created a sexually charged atmosphere at the PPD. Henkel, Joy, and Hagans occasionally flirted with female employees, but particularly offensive to Taylor was a summer 2001 scavenger hunt, undertaken as a "team building exercise," during which, in order to earn points for a "wow," a female coworker produced a yellow brassiere from her gym bag, and a male coworker asked Taylor, who had red hair, if her hair was red "all over." Bacon and Henkel awarded Taylor's team bonus points for what Henkel referred to as this "embarrassing moment."

According to Taylor, Bacon began in 2001 to engage in frequent acts of harassment. Although Taylor and Bacon had been running partners for nearly a year, Taylor stopped running with him in the summer of 2001 because she felt he had overstepped the bounds of a professional relationship. In October Bacon told Taylor he could persuade Henkel to give her a good performance evaluation. When Henkel did so, Bacon asked her, "what are you going to do for me?" Around the same time, Taylor posted on her office door an October 2, 2001 e-mail detailing the Corporation's policy concerning sexual harassment. In or before November Bacon began intimating Taylor was not in love with her fiance, saying he could beat him up. Taylor confided in her friend, David Smith, a team leader in the IOD, that she felt harassed; he did not advise her to go to the EEO Counselor, nor did he do so himself.

Also in 2001 Taylor confronted Bacon and threatened to report him if he did not stop sexually harassing her. Bacon said that because he was a "nice guy," everyone "would think ... [she was] the problem." On April 3, 2002 Bacon saw Taylor in the hall and, referring to her uncovered arms, said, "I see you flaunting that black." The next day, when Bacon entered her office, Taylor kept her back to him; Bacon asked repeatedly, "what did I tell you about turning your back to me when I'm talking to you," which Taylor ascribed to a desire on his part to "see my legs or chest." A day later Bacon, finding Taylor alone in the copy room, walked toward her with his hands raised as if, in her view, he was preparing to choke her. When she protested, he did not touch her, but he called her "baby" and said he would touch her if he wanted.

Taylor reported Bacon's conduct on April 9, 2002. She first filed a complaint with the PBGC's internal investigator, who did not find a violation of the Corporation's policy. When her complaint to the EEO office had proved unavailing, she brought this suit in the district court on August 19, 2003.

Taylor alleges her supervisors retaliated against her in response to her complaint and her lawsuit. In 2002 Hagans criticized her "negative behaviors." Joy and Henkel, who had evaluated her job performance as "Outstanding" in 2001, rated her work "Excellent" in 2002 and "Fully Effective" in 2003, and in the third quarter of 2003 required her to submit biweekly reports of her progress on pending cases. In November 2003, after Taylor had submitted a confusing request for leave, Henkel, at the direction of the Human Resources Department, listed Taylor as AWOL. (The listing was later rescinded and Taylor received back pay.) Finally, in 2004 Joy refused to recommend Taylor for a new position the PBGC considered creating but ultimately did not create. Taylor filed a second EEO complaint on February 5, 2004 and a second lawsuit on April 22, 2005, claiming continued harassment and retaliation.

The district court consolidated Taylor's lawsuits and granted the PBGC's motion for summary judgment. See Taylor v. Chao, 516 F.Supp.2d 128, 130 (2007). With respect to Taylor's claim of sexual harassment, the court held the Corporation's anti-harassment policy and complaint procedure together with Taylor's delay in reporting Bacon provided, as a matter of law, an affirmative defense. Id. at 134-35. In the alternative, the court held Taylor had not shown a reasonable jury could find her supervisors' conduct created a hostile environment. Id. at 135-37. As for retaliation, the court concluded, with respect to most of Taylor's claims, she had not produced prima facie evidence showing her filing the April 2002 complaint caused her supervisors to retaliate against her. Id. at 138. The court also held Hagans's criticism of Taylor's "negative behaviors" was not a "materially adverse act." Id. at 137-38. Finally, the court held Taylor had made out a prima facie case of retaliation with respect to the performance evaluation she received in 2002 but had failed to rebut the PBGC's legitimate explanation for that evaluation. Id. at 138-39.

II. Analysis

We review the judgment of the district court de novo. See Venetian Casino Resort, L.L.C. v. EEOC, 530 F.3d 925, 929 (D.C.Cir.2008). We begin with Taylor's claim of sexual harassment and then turn to her claim of retaliation.

A. Sexual Harassment

Title VII provides: "All personnel actions affecting employees ... in executive agencies ... shall be made free from any discrimination based on ... sex," 42 U.S.C. § 2000e-16(a), and thus makes it unlawful for a supervisor in a covered federal agency to create a hostile environment based upon an employee's sex. See Bundy v. Jackson, 641 F.2d 934, 944-46 (D.C.Cir. 1981). Sexual harassment creates a hostile environment only if it is so "severe or pervasive [as] to alter the conditions of [the victim's] employment and create an abusive working environment." Meritor Sav. Bank v. Vinson, 477 U.S. 57, 67, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986). The employer has an affirmative defense to a hostile environment claim if (1) the employer "exercised reasonable care to prevent and correct promptly any sexually harassing behavior" and (2) "the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise." Faragher v. City of Boca Raton, 524 U.S. 775, 807, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998); see also Burlington Indus. v. Ellerth, 524 U.S. 742, 765, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998).

The PBGC argues Taylor was not subjected to a hostile work environment and, in any event, the district court correctly held the employer had an affirmative defense because Taylor unreasonably failed to use its complaint procedure. See Ellerth, 524 U.S. at 765, 118 S.Ct. 2257 ("any unreasonable failure to use any complaint procedure provided by the employer ... will normally suffice to satisfy the employer's burden"). Taylor does not challenge the adequacy of the Corporation's procedure. Therefore, the PBGC may avoid liability if it shows "that, as a matter of law, a reasonable person in [Taylor's] place would have come forward early enough to prevent [the] harassment from becoming `severe or pervasive.'" Greene v. Dalton, 164 F.3d 671, 675 (D.C.Cir. 1999).

We agree with the district court and the PBGC that a reasonable employee in Taylor's position would have come forward in October or November 2001, when Taylor instead posted the PBGC's sexual harassment policy on her office door and told her friend Smith that Bacon had been sexually harassing her. A reasonable employee...