Taylor v. Geithner
Filing
92
ORDER GRANTING 53 Motion to Dismiss. All remaining pending motions are DENIED as moot. Signed by Judge Samuel H. Mays, Jr., on 7/6/2011. (Mays, Samuel)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
SHERYL TAYLOR,
Plaintiff,
v.
TIMOTHY F. GEITHNER,
Secretary of the Treasury,
Defendant.
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No. 08-2735
ORDER GRANTING DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S BREACH
OF SETTLEMENT CLAIM AND GRANTING DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT ON PLAINTIFF’S RETALIATION CLAIM
Before the Court is the December 30, 2010 Motion to Dismiss
and Motion for Summary Judgment filed by Defendant Timothy F.
Geithner (“Geithner”), Secretary of the Treasury.1
to Dismiss and Mot. for Summ. J., ECF No. 53.)
(Def.’s Mot.
(“Def.’s Mots.”)
Plaintiff Sheryl Taylor (“Taylor”) responded in opposition on
January 26, 2011.
(Pl.’s Br. in Opp’n to Def.’s Mot. to Dismiss
and Mot. for Summ. J., ECF No. 63.)
responded
to
Taylor’s
February 11, 2011.
counter-statement
of
material
Geithner
facts
on
(Def.’s Resp. to Pl.’s Counter Statement of
Material Facts, ECF No. 66.)
1
(“Pl.’s Resp.”)
(“Def.’s Reply”)
Plaintiff Sheryl Taylor sues Geithner in his official capacity as head of
the executive agency at which she works. (See Second Am. Compl. ¶ 4, ECF No.
22.)
For
the
following
reasons,
Geithner’s
Motion
to
Dismiss
Taylor’s breach of settlement agreement claim is GRANTED, and
his Motion for Summary Judgment on Taylor’s retaliation claim is
GRANTED.
Background2
I.
Taylor
is
an
employee
of
the
(“IRS”) in Memphis, Tennessee.
Resp. 3.)
Internal
Revenue
(See Def.’s Mots. 2-3; Pl.’s
From July 2004 to September 17, 2006, Taylor worked
in a unit supervised by Ethel Shields (“Shields”).3
Mots.
3;
Service
Pl.’s
supervision,
Resp.
Taylor
(“EEO”) complaint.4
3.)
filed
Before
an
equal
working
(See Def.’s
under
employment
Shields’
opportunity
(See Def.’s Mots. 3; Pl.’s Resp. 3.)
EEO complaint did not involve Shields.
Her
(See Def.’s Mots. 3;
Pl.’s Resp. 3.)
On September 3, 2004, Taylor filed a complaint alleging
retaliation with the Department of the Treasury.
Resp. 5; Def.’s Reply 1; Ex. K, ECF No. 63-11.)
(See Pl.’s
Shields issued
a written warning to Taylor on September 27, 2004, stating that
“[r]efusing to follow the chain of command may be considered an
2
Unless otherwise stated, all facts discussed in this Part are undisputed.
Although Taylor denies that she worked for an IRS unit supervised by Shields
from 2004 to 2006, she bases her denial on documents stating that Shields was
Taylor’s supervisor from July 2004 to September 17, 2006. (See Pl.’s Resp.
3; Ex. 6, ECF No. 53-1; Ex. A, at ¶ 4, ECF No. 63-1.) Therefore, the Court
assumes that Taylor does not dispute Shields’ statements that she was
Taylor’s supervisor between July 2004 and September 17, 2006.
4
It appears that this complaint was filed on June 25, 2004. (See Pl.’s Resp.
5; Def.’s Reply 1.)
3
2
act of insubordination and could lead to disciplinary actions.”5
(See Pl.’s Resp. 5; Def.’s Reply 2; Ex. C, ECF No. 63-3.)
On April 13, 2005, Taylor filed an EEO complaint about a
pending three-day suspension.6
4.)
(See Def.’s Mots. 4; Pl.’s Resp.
In July 2005, the complaint was resolved by a settlement
agreement between Taylor and the IRS.
Pl.’s Resp. 4; Ex. 7, ECF No. 53-1.)
(See Def.’s Mots. 4;
As part of the agreement,
the IRS agreed to remove the three-day suspension from Taylor’s
Time and Attendance record within WebSETR, a time and attendance
system used by the IRS,7 by August 5, 2005, and to remove any
reference
file.
to
the
suspension
from
Taylor’s
employee
personnel
(See Def.’s Mots. 4-5; Pl.’s Resp. 4; Ex. 7, ECF No. 53-
1.)
On August 18, 2005, Taylor wrote a letter alleging that the
IRS had breached the settlement agreement.
Pl.’s Resp. 5.)
(See Def.’s Mots. 5;
Taylor believed that negative information was
5
Although Geithner does not directly state whether he admits or denies this
fact, his response does not appear to dispute this fact. (See Def.’s Reply
2.)
6
Although the parties agree that Taylor filed the complaint on April 13,
2005, she did not receive a letter proposing to suspend her until April 15,
2005, and did not serve her three-day suspension until May 9, 2005. (See Ex.
B, ECF No. 63-2.) She describes the complaint she filed on April 13, 2005,
as an “informal EEO retaliation complaint, or pre-complaint, concerning the
three-day suspension that was proposed and that later was imposed on me in
connection with my interactions with Stephanie Boone-Gage, whom I believe was
a lead Offer Examiner.” (Ex. I, at ¶ 4, ECF No. 63-9.)
7
Although Taylor denies a paragraph stating in part that WebSETR is a time
and attendance system used by the IRS (see Def.’s Mots. 5; Pl.’s Resp. 4),
she admits that the settlement agreement provided that her three-day
suspension would be removed from her time and attendance record within
WebSETR (see Def.’s Mots. 4-5; Pl.’s Resp. 4).
Therefore, Taylor does not
seem to dispute that WebSETR is a time and attendance system used by the IRS.
3
contained in her personnel records in breach of the agreement.
(See Def.’s Mots. 5; Pl.’s Resp. 5.)
In a final decision dated
November 1, 2006, the IRS concluded that the agreement had been
breached,
but
that
the
agreement at that time.
9, ECF No. 53-1.)
agency
was
in
compliance
with
the
(See Def.’s Mots. 5; Pl.’s Resp. 5; Ex.
Taylor did not appeal that decision.
(See
Def.’s Mots. 5; Pl.’s Resp. 5.)
On August 4, 2006, Taylor filed an EEO complaint.
Def.’s
Mots.
3;
Pl.’s
Resp.
3.)
The
issues
(See
accepted
for
investigation were whether the IRS retaliated against her when,
beginning in May 2004, Shields gave negative references about
Taylor to prospective employers, and whether, beginning in May
2006, Shields violated personnel policy by verifying Taylor’s
employment with prospective employers instead of directing them
to the automated work verifier system.
(See Def.’s Mots. 3;
Pl.’s Resp. 3.)
On May 10, 2007, the IRS received a letter from Taylor
dated May 2, 2007, in which Taylor again alleged that the IRS
had breached the settlement agreement.
Pl.’s Resp. 5.)
days.
the
(See Def.’s Mots. 5-6;
The IRS did not issue a decision within 35
(See Def.’s Mots. 6; Pl.’s Resp. 5.)
Equal
Employment
Opportunity
Taylor appealed to
Commission
(“EEOC”),
which
ordered the IRS to conduct an investigation.
(See Def.’s Mots.
6; Pl.’s Resp. 5; Ex. 10, ECF No. 53-1.)
Taylor requested
4
reconsideration
of
the
September 10, 2008.
decision,
which
the
EEOC
denied
on
(See Def.’s Mots. 6; Pl.’s Resp. 5; Ex. 10,
ECF No. 53-1.)
In
compliance
with
another investigation.
the
EEOC’s
order,
the
IRS
conducted
(See Def.’s Mots. 6; Pl.’s Resp. 5.)
A
final decision was issued on October 10, 2008, which concluded
that the agency was in compliance with the settlement agreement.
(See Def.’s Mots. 6; Pl.’s Resp. 5.)
The final decision noted
that Taylor had failed to appeal the prior decision on her claim
of
breach
of
the
settlement
agreement
attempting to re-litigate the same claim.
and
that
she
was
(See Def.’s Mots. 6;
Pl.’s Resp. 5.)
Many
of
the
underlying
claim are disputed.
2005,
Taylor
participate
a
about
Taylor’s
retaliation
The parties agree that, on December 1,
notified
in
facts
Shields
program
Presidential Classroom.
by
e-mail
sponsored
by
that
the
she
IRS
wanted
called
to
the
(See Def.’s Mots. 4; Pl.’s Resp. 3.)
Shields responded by e-mail as follows:
Sheryl I have not received confirmation that the IRS
will
participate
in
the
Presidential
Classroom
program.
There are no approvals for travel unless
Mission Critical for IRS (SB/SE). I will not provide
a letter of recommendation because in my observation
you have not demonstrated the skills needed to
participate in this program.
My concerns are your
ability to effectively communicate your meet and deal
skills [sic] and your interrelationship skills that I
deem necessary for this type of assignment.
5
(See Def.’s Mots. 4; Pl.’s Resp. 3.)
Taylor testified during
her deposition that she did not know whether Shields had sent
the e-mail to anyone other than her.
(See Def.’s Mots. 4; Pl.’s
Resp. 3-4; Dep. of Sheryl Taylor 91:16-21, ECF No. 53-1.)
After
more communication between Shields and Taylor on December 1,
2005, Shields changed her mind and gave Taylor the following
recommendation for the Presidential Classroom program:
Ms. Taylor has been in my unit since July 2004 until
the present.
During this time she has performed her
assignments timely. Ms. Taylor’s job requires her to
sometime [sic] take telephone calls from taxpayers.
She is very professional and conscientious when
providing
the
taxpayers
with
guidance
and
instructions.
Ms[.] Taylor attended a two week
Classroom Instructor Training to prepare to instruct
classes within the organization. She is scheduled to
instruct some classes in the future.
Ms. Taylor
served as a volunteer for the Combined Federal
Campaign and also participated in the Day of Caring
this year.
(See Def.’s Mots. 4; Pl.’s Resp. 4.)
According
disciplinary
evaluation
to
actions
while
Def.’s Mots. 3.)
called
Geithner,
Document
she
and
was
Taylor
received
under
an
did
not
outstanding
Shields’
receive
any
performance
supervision.
(See
Geithner asserts that Taylor hired a company
Reference
opinion about her work.
Check
(“DRC”)8
(See id.)
to
solicit
Shields’
Someone from DRC called
Shields, and Taylor was not a party to that conversation.
8
(See
The parties inconsistently refer to the company as Document Reference Check
and Documented Reference Check.
(See Def.’s Mots. 3; Pl.’s Resp. 3.)
For
consistency, the Court will refer to the company as DRC.
6
Geithner also asserts that, on August 4, 2005, Genevle
id.)
Acklin, an IRS Manager, changed Taylor’s information in WebSETR
to reflect that she had received a leave of three days without
pay instead of a three-day suspension during the period she was
absent from work.
(See id. at 5.)
Nevertheless, WebSETR is
programmed to maintain a historical record of personnel actions
for twenty-five pay periods, and it is not physically possible
for
a
manager
or
WebSETR
representative
to
take
out
all
(See id.)
reference to personnel action during that period.
Geithner also asserts that WebSETR is not programmed to transmit
any information from the IRS to the United States Office of
Personnel
Management
(“OPM”)
and
that
OPM
does
not
receive
information about federal employees while they remain employed
by the federal government.
According
to
Taylor,
(See id.)
she
received
while under Shields’ supervision.
disciplinary
actions
(See Pl.’s Resp. 3.)
On
September 27, 2004, Shields gave Taylor a written warning for
contacting a director’s secretary instead of following the chain
of command.
(See id.)
On April 20, 2005, Shields gave Taylor a
written warning for using a cellular phone in the work area.
(See
id.)
On
May
suspension on Taylor.9
9,
2005,
the
IRS
imposed
a
three-day
(See id.)
9
Taylor states that the IRS imposed a three-day suspension on her on May 2,
2005.
(See Pl.’s Resp. 3.)
The document she cites in support states that
7
Taylor admits that she asked DRC to contact Shields for
references, that Wendy Casey (“Casey”) of DRC called Shields,
and that Taylor was not a party to the conversation between
Shields
and
Casey.
id.)
(See
Taylor
asserts
that
the
settlement agreement between her and the IRS provided that Sarah
Neal (“Neal”), an IRS manager, would remove the record of her
three-day suspension from her time and attendance file within
WebSETR by August 5, 2005.
(See id. at 4.)
Neal testified
during her deposition that Labor Relations would have handled
compliance with the promise and that nobody reported back to her
whether the promise had been fulfilled.
asserts
that
employees
OPM
before
does
they
receive
separate
(See id.)
information
from
federal
Taylor also
about
federal
employment,
as
evidenced by a document in OPM’s files on August 9, 2005, about
her.
(See id.)
In
claims:
Taylor’s
(1)
second
retaliation
amended
complaint,
she
for
complaints
about
her
asserts
two
employment
discrimination, in violation of Title VII, 42 U.S.C. § 2000e16(a),
and
(2)
breach
of
the
settlement
agreement
requiring
removal of any records of her three-day suspension from her time
and attendance file and employee personnel file.
Am. Compl. 4-5, ECF No. 22.)
(See Second
Geithner has moved to dismiss
she did not serve her three-day suspension until May 9, 2005.
B, ECF No. 63-2.)
8
(See id.; Ex.
Taylor’s
breach
of
settlement
agreement
claim
for
lack
of
subject matter jurisdiction and has moved for summary judgment
(See Def.’s Mots. 1, 6-17, 19.)
on Taylor’s retaliation claim.
II.
Standard of Review
“When the defendant challenges the existence of subjectmatter
jurisdiction,
establishing
that
the
plaintiff
jurisdiction
bears
exists.”
the
Lewis
burden
v.
of
Whirlpool
Corp., 630 F.3d 484, 487 (6th Cir. 2011) (citing Nichols v.
Muskingum Coll., 318 F.3d 674, 677 (6th Cir. 2003)).
“[W]hen a
court lacks subject-matter jurisdiction over a claim, it must
immediately dismiss not just that claim but any pendent statelaw claims as well—no matter how late in the case the district
or
appellate
court
identifies
the
jurisdictional
defect.”
Winnett v. Caterpillar, Inc., 553 F.3d 1000, 1007 (6th Cir.
2009) (citation omitted).
“Rule
12(b)(1)
motions
to
dismiss
for
lack
of
subject-
matter jurisdiction generally come in two varieties: a facial
attack
or
a
factual
attack.”
Gentek
Bldg.
Prods.,
Inc.
v.
Sherwin-Williams Co., 491 F.3d 320, 330 (6th Cir. 2007) (citing
Ohio Nat’l Life Ins. Co. v. United States, 922 F.2d 320, 325
(6th
Cir.
1990)).
jurisdiction
alleged
“A
facial
in
the
sufficiency of the pleading.”
Co., 922 F.2d at 325).
attack
complaint
on
the
subject-matter
questions
merely
the
Id. (citing Ohio Nat’l Life Ins.
“When reviewing a facial attack, a
9
district court takes the allegations in the complaint as true,
which is a similar safeguard employed under 12(b)(6) motions to
Id. (citing Ohio Nat’l Life Ins. Co., 922 F.2d at
dismiss.”
325).
“If
those
jurisdiction exists.”
allegations
establish
federal
claims,
Id. (citing Ohio Nat’l Life Ins. Co., 922
F.2d at 325).
“Where, on the other hand, there is a factual attack on the
subject-matter
presumptive
jurisdiction
truthfulness
alleged
applies
to
in
the
complaint,
the
allegations.”
(citing Ohio Nat’l Life Ins. Co., 922 F.2d at 325).
no
Id.
“When a
factual attack, also known as a ‘speaking motion,’ raises a
factual
controversy,
the
district
court
must
weigh
the
conflicting evidence to arrive at the factual predicate that
subject-matter
[jurisdiction]
does
or
does
not
exist.”
(citing Ohio Nat’l Life Ins. Co., 922 F.2d at 325).
review,
the
district
court
has
wide
discretion
Id.
“In its
to
allow
affidavits, documents, and even a limited evidentiary hearing to
resolve jurisdictional facts.”
Id. (citing Ohio Nat’l Life Ins.
Co., 922 F.2d at 325).
Under Federal Rule of Civil Procedure 56, on motion of a
party, the court “shall grant summary judgment if the movant
shows that 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).
The party moving for summary judgment
10
“bears the burden of clearly and convincingly establishing the
nonexistence of any genuine [dispute] of material fact, and the
evidence as well as all inferences drawn therefrom must be read
in a light most favorable to the party opposing the motion.”
Kochins v. Linden-Alimak, Inc., 799 F.2d 1128, 1133 (6th Cir.
1986); see Fed. R. Civ. P. 56(a).
The moving party can meet
this burden by pointing out to the court that the respondent,
having had sufficient opportunity for discovery, has no evidence
to support an essential element of her case.
See Fed. R. Civ.
P. 56; Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th
Cir. 1989).
When
confronted
with
a
properly
supported
motion
for
summary judgment, the respondent must set forth specific facts
showing that there is a genuine dispute for trial.
Civ. P. 56.
See Fed. R.
A genuine dispute for trial exists if the evidence
is such that a reasonable jury could return a verdict for the
nonmoving party.
See Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986).
The nonmoving party must “do more than simply
show that there is some metaphysical doubt as to the material
facts.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 586 (1986).
One may not oppose a properly supported
summary judgment motion by mere reliance on the pleadings.
Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
See
Instead,
the nonmovant must present “concrete evidence supporting [her]
11
Cloverdale Equip. Co. v. Simon Aerials, Inc., 869 F.2d
claims.”
934, 937 (6th Cir. 1989) (citations omitted); see Fed. R. Civ.
P. 56(c)(1).
search
the
The district court does not have the duty to
record
for
such
evidence.
Fed.
See
R.
Civ.
P.
56(c)(3); InterRoyal Corp. v. Sponseller, 889 F.2d 108, 111 (6th
Cir. 1989).
The nonmovant has the duty to point out specific
evidence in the record that would be sufficient to justify a
jury decision in her favor.
InterRoyal
Corp.,
integral
part
designed
to
determination
of
889
F.2d
the
Federal
secure
of
See Fed. R. Civ. P. 56(c)(1);
every
procedural shortcut.”
the
at
111.
“Summary
Rules
just,
action[,]
as
a
speedy,
rather
judgment
whole,
and
than
is
which
an
are
inexpensive
a
disfavored
FDIC v. Jeff Miller Stables, 573 F.3d
289, 294 (6th Cir. 2009) (internal quotation marks and citations
omitted).10
III. Jurisdiction
10
Taylor filed a motion to compel on November 1, 2010, requesting an order
requiring Geithner to designate a representative to testify about certain
selection decisions for vacant positions in the IRS to which Taylor had
applied.
(See Pl.’s Mot. to Compel, ECF No. 45.)
On April 1, 2011, the
Magistrate Judge granted Taylor’s motion to compel in part, finding that she
had the right to obtain discovery about twenty-eight vacant positions, and
deferred ruling on Taylor’s motion to compel testimony about the remaining
positions for which she had applied. (Order Granting Pl.’s Mot. to Compel in
Part, ECF No. 73.)
Geithner filed objections.
(Def.’s Exceptions to
Magistrate Judge’s Order Granting Pl.’s Mot. to Compel in Part, or in the
Alternative, Motion to Clarify Issues, ECF No. 81.)
Taylor has responded to
Geithner’s summary judgment motion and statement of material facts and has
provided her own statement of additional facts.
(See Pl.’s Resp. 2-8.)
Taylor has not argued in response that she has inadequate information to
respond to Geithner’s summary judgment motion or that the motion is
premature. Based on the filings of the parties, which reveal, as discussed
in Part IV, that there is no dispute as to any material fact, Geithner’s
motions are ripe for decision.
12
The
over
parties
Taylor’s
dispute
claim
whether
that
the
this
IRS
Court
breached
has
jurisdiction
the
settlement
agreement disposing of her discrimination complaint.
(Compare
Def.’s Mots. 6-11 (arguing that the Court lacks subject matter
jurisdiction over Taylor’s breach of settlement agreement claim
because the United States has not waived sovereign immunity in
regard to lawsuits alleging breach of settlement agreements in
federal
employee
discrimination
cases
and
because
Taylor
has
failed to exhaust administrative remedies), with Pl.’s Resp. 814 (arguing that the Court has subject matter jurisdiction over
Taylor’s breach of settlement agreement claim because the Court
may exercise supplemental jurisdiction over the claim and she
has exhausted her administrative remedies).)
Although the Sixth Circuit Court of Appeals does not seem
to have addressed whether district courts have jurisdiction over
a federal employee’s claim that the federal government breached
a settlement agreement disposing of the federal employee’s Title
VII claim, the Fourth and Tenth Circuit Courts of Appeals have
held that they do not.
1191,
1192-96
(10th
See Lindstrom v. United States, 510 F.3d
Cir.
2007)
(affirming
district
court’s
determination that it did not have subject matter jurisdiction
over plaintiff’s suit to enforce a settlement agreement he had
reached with the Department of the Interior on his disability
discrimination claim); Frahm v. United States, 492 F.3d 258, 262
13
(4th Cir. 2007) (“Because neither the settlement agreement nor a
statute allow Miss Frahm to sue the government for breach of the
settlement agreement, her action was properly dismissed.”)
“The district courts of the United States . . . are ‘courts
of
limited
jurisdiction.
They
possess
only
authorized by Constitution and statute . . . .’”
Corp.
v.
Allapattah
Servs.,
Inc.,
545
U.S.
546,
that
power
Exxon Mobil
552
(2005)
(quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.
375, 377 (1994)).
“The United States, as sovereign, is immune
from suit save as it consents to be sued . . . .”
Frahm, 492
F.3d at 262 (quoting United States v. Sherwood, 312 U.S. 584,
586 (1941)); see also Premo v. United States, 599 F.3d 540, 544
(6th Cir. 2010) (“Sovereign immunity prevents suit against the
United States without its consent.” (citing United States v.
Mitchell,
463
U.S.
206,
212
(1983))).
“Congress
has,
admittedly, waived sovereign immunity in Title VII suits where
the federal government is the employer.”
(citing
42
U.S.C.
§
2000e-16(d)).
Frahm, 492 F.3d at 262
“However,
this
statutory
waiver does not expressly extend to monetary claims against the
government for breach of a settlement agreement that resolves a
Title VII dispute.”
Id.
“Even if the matter were at all
ambiguous, the issue is revolved by the rule that the ‘scope’ of
a
‘waiver
of
the
Government’s
sovereign
immunity
will
strictly construed . . . in favor of the sovereign.’”
14
be
Id.
(quoting Lane v. Pena, 518 U.S. 187, 192 (1996)).
No statute
allows federal employees to sue the government for breach of
settlement agreements.
jurisdiction
over
See id.
federal
Therefore, district courts lack
employees’
claims
that
the
federal
government breached settlement agreements resolving Title VII
disputes.
See
id.;
see
also
Lindstrom,
510
F.3d
at
1195
(affirming district court’s determination that it lacked subject
matter
jurisdiction
over
a
plaintiff’s
suit
to
enforce
his
settlement agreement).
As the Fourth and Tenth Circuits have noted, a regulation
promulgated by the EEOC supports the conclusion that district
courts lack jurisdiction.
Frahm, 492 F.3d at 262-63.
See
Lindstrom, 510 F.3d at 1194;
Under 29 C.F.R. § 1614.504(a), a
federal government employee has limited remedies when he alleges
that the federal government has breached a Title VII settlement
agreement:
Any settlement agreement knowingly and voluntarily
agreed to by the parties, reached at any stage of the
complaint process, shall be binding on both parties.
Final action that has not been the subject of an
appeal or civil action shall be binding on the agency.
If the complainant believes that the agency has failed
to comply with the terms of a settlement agreement or
decision, the complainant shall notify the EEO
Director, in writing, of the alleged noncompliance
within 30 days of when the complainant knew or should
have known of the alleged noncompliance.
The
complainant may request that the terms of settlement
agreement
be
specifically
implemented
or,
alternatively, that the complaint be reinstated for
further processing from the point processing ceased.
15
29
C.F.R.
federal
§
1614.504(a).
employees
to
sue
This
in
regulation
federal
does
court
to
not
enforce
permit
their
See Lindstrom, 510 F.3d at 1194.
settlement agreements’ terms.
It does not contemplate such lawsuits.
See id. (“The regulation
does not authorize a suit to enforce the settlement agreement
but rather only the reinstatement of the original discrimination
complaint. . . . The EEOC, through 29 C.F.R. § 1614.504(a), has
thus
limited
Mr.
discrimination
agreement.
Lindstrom
claim
and
to
not
suing
to
on
his
enforce
his
original
settlement
The district court therefore did not have subject
matter jurisdiction to hear his suit under Title VII.”); Frahm,
492
F.3d
at
1614.504(a),
262-63
“the
(concluding
government
that,
has
under
specifically
29
C.F.R.
limited
§
by
regulation the forms of relief a plaintiff may seek when she
alleges
breach
of
a
Title
VII
settlement
agreement
by
a
government agency” and rejecting plaintiff’s argument that the
two forms of relief outlined in the regulation are not the only
remedies available in case of breach).
Here,
Taylor
asserts
a
claim
that
her
federal
employer
breached the settlement agreement resolving her Title VII claim.
(See Second Am. Compl. ¶¶ 18-19, 22.)
matter jurisdiction over that claim.
The Court lacks subject
See Lindstrom, 510 F.3d at
1192-96; Frahm, 492 F.3d at 262-63; see also Munoz v. Mabus, 630
16
F.3d
856,
860-61
(9th
Cir.
2010)
(“We
now
join
our
sister
circuits in holding that Congress’ waiver of sovereign immunity
under Title VII does not extend to suits to enforce settlement
agreements
entered
into
without
genuine
investigation,
reasonable cause determination, and conciliation efforts by the
EEOC.”); Sawyer v. Nicholson, No. 06-CV-5907, 2010 WL 4510954,
at
*29
(N.D.
consented
Ill.
to
Nov.
being
1,
sued
2010)
by
(“Because
federal
Congress
employees
to
has
not
enforce
settlement agreements that resolve Title VII disputes, a court
does
not
have
settlement
subject
agreement
matter
jurisdiction
claim.”);
Gerdes
over
v.
a
breach
Chertoff,
of
No.
4:08CV3246, 2009 WL 2351742, at *1-4 (D. Neb. July 24, 2009)
(concluding
that
the
court
did
not
have
subject
matter
jurisdiction to enforce a settlement agreement regarding Title
VII claims between a federal agency and a federal employee);
Petrie
v.
Sec’y,
(WOB),
2009
WL
Dep’t
366628,
of
at
Veterans
*1-2
Affairs,
(S.D.
Ohio
No.
Feb.
2:06cv01031
11,
2009)
(dismissing federal employee’s claim for breach of settlement
agreement against her employer for lack of jurisdiction).
Because the Court lacks subject matter jurisdiction over
Taylor’s breach of settlement agreement claim, it may not and
should not exercise supplemental jurisdiction over that claim.
“[A] suit to enforce a settlement agreement requires its own
basis of jurisdiction independent from the federal source of the
17
Munoz, 630 F.3d at 863 (citing
underlying claim . . . .”
Kokkonen, 511 U.S. at 378, 381-82).
‘is
a
doctrine
of
discretion,
“Supplemental jurisdiction
not
of
plaintiff’s
right.’”
Habich v. City of Dearborn, 331 F.3d 524, 535 (6th Cir. 2003)
(quoting Baer v. R&F Coal Co., 782 F.2d 600, 603 (6th Cir.
1986)).
Section
1367(a)
sovereign immunity.”
“does
not
constitute
a
waiver
of
United States v. Certain Land Situated in
City of Detroit, 361 F.3d 305, 307 (6th Cir. 2004).
The United
States has not waived its sovereign immunity to Taylor’s breach
of settlement agreement claim.
Therefore, the Court may not and
should not exercise supplemental jurisdiction over that claim
and declines to do so.
See United States v. Park Place Assocs.,
Ltd.,
933-34
563
F.3d
907,
(9th
Cir.
2009);
Certain
Land
Situated in City of Detroit, 361 F.3d at 307; Palmer v. Comm’r
of
Internal
Revenue,
62
F.
App’x
682,
685
(7th
Cir.
2003).
Taylor’s breach of settlement agreement claim is DISMISSED.11
Because Taylor alleges that Geithner violated 42 U.S.C. §
2000e-16(a), the Court has subject matter jurisdiction over her
retaliation claim under 28 U.S.C. § 1331 and 42 U.S.C. § 2000e16(c).
See 28 U.S.C. § 1331; 42 U.S.C. § 2000e-16(c); Perry v.
Harvey, 332 F. App’x 728, 730 n.1 (3d Cir. 2009); Ortiz v.
11
Because the Court lacks jurisdiction over Taylor’s breach of settlement
agreement claim on the ground that the United States has not waived its
sovereign immunity, the Court need not consider Geithner’s alternative
argument that the breach of settlement agreement claim is barred because
Taylor has failed to exhaust her administrative remedies. (See Def.’s Mots.
9-11.)
18
Norton, 254 F.3d 889, 891 (10th Cir. 2001); Reddy v. Espy, No.
95-16351,
1996
WL
596224,
at
*1
(9th
Cir.
Oct.
16,
1996);
Minnifield v. Dep’t of Veterans Affairs, No. 3:08-cv-357, 2010
WL 1818047, at *1 (S.D. Ohio Apr. 14, 2010).
IV.
Analysis
Geithner
has
retaliation claim.
moved
for
summary
judgment
(See Def.’s Mots. 11-17, 19.)
on
Taylor’s
Taylor has
responded in opposition, arguing that genuine issues of material
(See Pl.’s Resp. 14-22.)
fact preclude summary judgment.
“Title
VII
of
the
Civil
employment discrimination.”
(1999).
Rights
Act
of
1964
forbids
West v. Gibson, 527 U.S. 212, 214
“In 1972 Congress extended Title VII so that it applies
not only to employment in the private sector, but to employment
in the Federal Government as well.”
The
basic
federal
government
Id. (citation omitted).
employment
antidiscrimination
standard is that “[a]ll personnel actions affecting employees or
applicants for employment [of specified Government agencies and
departments] shall be made free from any discrimination based on
race, color, religion, sex, or national origin.”
42 U.S.C. § 2000e-16(a)).
Id. (quoting
Under that standard, the federal
government may not retaliate against federal employees.
e.g.,
Bonds
v.
Leavitt,
629
F.3d
369,
384
(4th
Cir.
See,
2011);
Taylor v. Solis, 571 F.3d 1313, 1320 (D.C. Cir. 2009); Dossa v.
Wynne, 529 F.3d 911, 915-16 (10th Cir. 2008); see also Kurtz v.
19
McHugh, No. 10-5042, 2011 WL 1885983, at *6 (6th Cir. May 18,
2011); Hunter v. Sec’y of U.S. Army, 565 F.3d 986, 995-97 (6th
Cir. 2009); Eneje v. Ashcroft, 67 F. App’x 901, 905 (6th Cir.
2003).
“Title
‘because
VII
[s]he
prohibits
has
made
retaliation
a
charge,
against
testified,
an
employee
assisted,
or
participated in any manner in an investigation, proceeding, or
hearing’
in
with
an
allegedly
unlawful
employment
Hunter, 565 F.3d at 995 (quoting 42 U.S.C. § 2000e-
practice.”
3(a)).
connection
“Under
the
applicable
federal
framework,
the
‘anti-
retaliation provision [of Title VII] protects an individual not
from
all
retaliation,
injury or harm.’”
but
from
retaliation
that
produces
an
Id. (quoting Burlington N. & Santa Fe Ry. Co.
v. White, 548 U.S. 53, 67 (2006)).
“In the absence of direct evidence, retaliation claims are
also
governed
framework.”
by
the
McDonnell
Douglas
burden-shifting
Reed v. Metro. Gov’t of Nashville & Davidson Cnty.,
286 F. App’x 251, 255 (6th Cir. 2008) (citing Weigel v. Baptist
Hosp. of E. Tenn., 302 F.3d 367, 381 (6th Cir. 2002)).
To
establish a prima facie case of retaliation under Title VII
using
that
framework,
a
plaintiff
must
demonstrate
elements:
(1) [she] engaged in activity protected by Title VII;
(2) this exercise of protected rights was known to
defendant; (3) defendant thereafter took adverse
20
four
employment action against the plaintiff, or the
plaintiff was subjected to severe or pervasive
retaliatory harassment by a supervisor; and (4) there
was a causal connection between the protected activity
and the adverse employment action or harassment.
Hunter, 565 F.3d at 995-96; accord Reed, 286 F. App’x at 255.
“If the plaintiff successfully establishes a prima facie case,
the
burden
then
shifts
to
the
defendant
to
articulate
a
legitimate, non-discriminatory reason for the adverse action.”
Reed, 286 F. App’x at 255 (citing Tex. Dep’t of Cmty. Affairs v.
Burdine, 450 U.S. 248, 254-56 (1981)); see also Hunter, 565 F.3d
at 996.
“The plaintiff may then seek to rebut the evidence by
demonstrating that the articulated reason was a mere pretext for
discrimination.”
Reed, 286 F. App’x at 255 (citing Burdine, 450
U.S. at 254-56); see also Hunter, 565 F.3d at 996.
Here, Taylor does not offer direct evidence of retaliation
and
seeks
to
demonstrate
retaliation
Douglas burden-shifting framework.
22.)
the
McDonnell
(See Pl.’s Resp. 8-9, 14-
The parties disagree about whether Taylor has demonstrated
a prima facie case of retaliation.
Pl.’s
through
Resp.
14-22.)
According
(See Def.’s Mots. 11-17, 19;
to
Geithner,
Taylor
cannot
establish a prima facie case because she was not subjected to an
adverse employment action and she cannot demonstrate a causal
connection
between
protected
activity.
disagrees.
any
adverse
(See
employment
Def.’s
(See Pl.’s Resp. 14-22.)
21
Mots.
action
11-17.)
and
her
Taylor
She argues that she can
make the necessary prima facie showing on both elements.
(See
id.)
The parties agree that Taylor filed EEO complaints alleging
discrimination
and
retaliation
and
contacted
EEO
counselors.
(See, e.g., Def.’s Mots. 3; Pl.’s Resp. 3-5; Def.’s Reply 1; Ex.
I, ECF No. 63-9.)
activity.
By doing so, Taylor engaged in protected
See 42 U.S.C. § 2000e–3(a); Hill v. Air Tran Airways,
No. 09-4094, 2011 WL 1042178, at *3 (6th Cir. Mar. 23, 2011);
Lindsay v. Yates, 578 F.3d 407, 418 (6th Cir. 2009); Payne v.
O’Neil, 73 F. App’x 144, 146 (6th Cir. 2003); see also Belyakov
v. Leavitt, 308 F. App’x 720, 729 (4th Cir. 2009).
Geithner
does not dispute that Shields was at least minimally aware of
Taylor’s activities.
(See Def.’s Mots. 12.)
Therefore, Taylor
satisfies the first two elements necessary to make a prima facie
See Hunter, 565 F.3d at 996.
showing of retaliation.
“For
the
purposes
employment
action
reasonable
worker
discrimination.’”
is
of
one
from
a
retaliation
that
‘well
making
or
claim,
might
have
supporting
an
adverse
dissuaded
a
a
charge
of
Hill v. Nicholson, 383 F. App’x 503, 512 (6th
Cir. 2010) (quoting Garner v. Cuyahoga Cnty. Juvenile Court, 554
F.3d
624,
639
(6th
Stainless,
LP,
131
antiretaliation
Cir.
S.
provision
2009));
Ct.
863,
prohibits
accord
868
any
Thompson
(2011)
v.
N.
(“Title
employer
action
Am.
VII’s
that
‘well might have dissuaded a reasonable worker from making or
22
supporting a charge of discrimination.’” (quoting Burlington N.
& Santa Fe Ry. Co., 548 U.S. at 68)).
employment
actions
in
the
“Examples of adverse
retaliation
context
‘include
termination of employment, a demotion evidenced by a decrease in
wage or salary, a less distinguished title, a material loss of
benefits, significantly diminished material responsibilities, or
other indices that might be unique to a particular situation.’”
Morales-Vallellanes v. Potter, 605 F.3d 27, 36 (1st Cir. 2010)
(quoting Lapka v. Chertoff, 517 F.3d 974, 986 (7th Cir. 2008)).
“Minor disruptions in the workplace, including ‘petty slights,
minor annoyances, and simple lack of good manners,’ fail to
qualify.”
Id. (quoting Burlington N. & Santa Fe Ry. Co., 548
U.S. at 68).
Taylor argues that several actions by Shields demonstrate
that Taylor suffered an adverse employment action.
Resp. 18-21.)
a
letter
of
The first is Shields’ initial refusal to provide
recommendation
Classroom program.
mind
the
(See Pl.’s
same
to
Taylor
(See id. at 18.)
day
and
for
the
Presidential
Because Shields changed her
provided
a
positive
letter
of
recommendation (see Def.’s Mots. 4; Pl.’s Resp. 4), her initial
refusal to provide a letter of recommendation did not cause
Taylor
to
advancement.
serious
to
lose
an
opportunity
Shields’
initial
dissuade
a
that
refusal
reasonable
23
might
was
worker
contribute
not
from
to
sufficiently
making
or
supporting a charge of discrimination.
adverse employment action.
Therefore, it was not an
See Burlington N. & Santa Fe Ry.
Co., 548 U.S. at 68; Kurtz, 2011 WL 1885983, at *6-7; see also
Hunter,
565
framework,
protects
F.3d
the
an
retaliation
at
995
(“Under
‘anti-retaliation
individual
that
not
produces
applicable
provision
from
an
the
all
[of
Title
retaliation,
injury
or
federal
but
harm.’”
VII]
from
(quoting
Burlington N. & Santa Fe Ry. Co., 548 U.S. at 67)).
The
second
action
Taylor
points
to
is
Shields’
alleged
negative comments about Taylor to a DRC employee who called
Shields to learn how Shields would respond to inquiries about
(See Pl.’s Resp. 18.)
Taylor from potential employers.
threshold
matter,
the
Court
notes
that
there
is
a
As a
serious
authentication issue with the evidence that purportedly shows
Shields made negative comments to a DRC employee: a transcript
signed
by
the
employee
purporting
to
reflect
(See id. at 3, 6-7; Ex. L, ECF No. 63-12.)
conversation.
EEOC
DRC
Administrative
Judge
found
that
Taylor
had
purported transcript of the telephone conversation.
Mots. 14; Ex. 12, at 11-12, ECF No. 53-1.)
that
the
transcript
in
this
version of the transcript.
conduct
the
telephone
case
is
a
altered
the
An
the
(See Def.’s
Taylor has not sworn
complete
and
correct
The DRC employee who purported to
interview
statement that:
24
signed
her
name
below
the
WENDY CASEY IS AN ASSOCIATE OF DOCUMENTED REFERENCE
CHECK, RECEIVING CORRESPONDENCE AT 1174 S. DIAMOND BAR
BLVD., DIAMOND BAR, CA 91765. THIS IS A DOCUMENT KEPT
IN THE NORMAL COURSE OF BUSINESS.
I STATE UNDER
PENALTY OF PERJURY THAT THE PRECEDING REFERENCE CHECK,
AS STATED ABOVE, IS TRUE AND CORRECT.
(Ex. L, at 7, ECF No. 63-12.)
Below her name is the signature
of Mike Rankin and the statement that he reviewed the report.
(See id.)
Even
if
the
Court
could
consider
the
transcript,
the
comments Shields allegedly made would not make a difference.
Taylor
has
offered
no
evidence
that
DRC
was
a
prospective
employer to which she had applied for employment.
She admits
that she asked DRC to contact Shields to learn what Shields
would say about her to prospective employers.
3, 18.)
(See Pl.’s Resp.
Taylor has offered no evidence that actual prospective
employers to which she had applied contacted Shields or that
Shields made similar comments to them about her.
22.)
(See id. at 1-
Taylor has not demonstrated that the comments Shields made
were false.
Although courts have held that a negative reference may be
an adverse employment action, they have only done so in contexts
where
the
reference
was
made
to
a
potential
employer
or
otherwise affected the plaintiff’s future employment prospects.
See, e.g., Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 17879 (2d Cir. 2005); Hillig v. Rumsfeld, 381 F.3d 1028, 1035 (10th
25
Cir. 2004); Abbott v. Crown Motor Co., 348 F.3d 537, 541-43 (6th
Cir. 2003); Smith v. St. Louis Univ., 109 F.3d 1261, 1266 (8th
Cir. 1997).
Taylor
is
correct
that
some
courts
have
held
that
a
plaintiff need not show that a negative reference precluded a
See, e.g., Hillig, 381 F.3d at
particular employment prospect.
1033 (“Therefore, an act by an employer that does more than de
minimis harm to a plaintiff’s future employment prospects can,
when
fully
situation
considering
at
hand,’
be
‘the
unique
regarded
factors
as
an
relevant
‘adverse
to
the
employment
action,’ even where plaintiff does not show the act precluded a
particular employment prospect.”) (citations omitted); Hashimoto
v. Dalton, 118 F.3d 671, 676 (9th Cir. 1997) (“[W]e conclude
that
the
retaliatory
dissemination
of
a
negative
employment
reference violates Title VII, even if the negative reference
does not affect the prospective employer’s decision not to hire
the victim of the discriminatory action.”).
Although those cases hold that a plaintiff need not show
that a particular employment prospect was precluded, they do not
stand for the proposition that a plaintiff can establish an
adverse employment action based on a supervisor’s comments about
her job performance without showing that an employment prospect
existed or that the comments affected her external or internal
employment prospects.
Taylor offers no evidence that an actual
26
prospective
employer
contacted
Shields,
that
Shields
made
comments similar to those allegedly made to DRC to an actual
prospective
employer,
or
that
Shields’
comments
affected
Taylor’s external or internal employment prospects.
Shields’
alleged comments to the DRC employee were inconsequential.
One and a half months after Shields’ alleged conversation
with the DRC employee, Shields gave Taylor an overall rating of
“Outstanding”
appraisal.
and
a
perfect
Taylor’s
performance
(See Pl.’s Resp. 7; Def.’s Reply 3.)
Later that
year, Taylor was promoted.
score
in
(See Def.’s Mots. 3; Pl.’s Resp. 3.)
Shields’ comments to the DRC employee did not have even a de
minimis effect.
They were not an adverse employment action.
See Thompson, 131 S. Ct. at 868; Burlington N. & Santa Fe Ry.
Co., 548 U.S. at 68; Hunter, 565 F.3d at 995; cf. Freeman v.
Potter, 200 F. App’x 439, 442 (6th Cir. 2006) (stating that an
adverse employment action usually inflicts direct economic harm
on
the
plaintiff);
Brown
v.
Colgate-Palmolive
No.
Co.,
104CV0782DFHWTL, 2006 WL 517684, at *16 (S.D. Ind. Mar. 2, 2006)
(“Actions
that
employee’s
tangible
do
terms
not
or
economic
carry
immediate
conditions
effect
is
of
ever
consequences
employment,
realized,
and
cannot
for
an
where
no
constitute
materially adverse employment actions under Title VII.”).
The
third
unsuccessfully
action
for
Taylor
fifty-two
points
positions
27
to
is
within
her
the
applying
IRS
after
January
1,
2004.
Pl.’s
(See
Resp.
18.)
Taylor
offers
greater detail about when she applied for the positions.
id.; Ex. I, at ¶ 13, ECF No. 63-9)
that
the
“transfer
whether
fifty-two
or
applications
promotion”
they
offered
(See
She states in an affidavit
she
submitted
further
were
but
offers
no
better
career
opportunities
subjective impressions.
no
for
detail
a
about
beyond
her
(See Ex. I.)
“In general, a lateral transfer, or the refusal to make a
lateral transfer, is not a materially adverse action.”
200 F. App’x at 443 (citation omitted).
Freeman,
As the Court of Appeals
has explained “an individual’s ‘subjective impression concerning
the desirability of one position over another’ is insufficient
to render an employer’s action materially adverse.’”
Id. at 442
(citations omitted).
The
Taylor
Court
applied
impressions.
accept
her
has
no
evidence
represented
a
that
the
promotion
positions
beyond
her
to
which
subjective
Taylor offers no evidence that the refusal to
applications
had
any
effect.
She
has
not
demonstrated that the IRS’ refusal to promote or transfer her to
one of the positions to which she applied constitutes an adverse
employment action.
See Hunter, 565 F.3d at 995; Freeman, 200 F.
App’x at 442-46; see also Blackburn v. Shelby Cnty., --- F.
Supp. 2d ---, No. 2:07-cv-02815, 2011 WL 692808, at *19 (W.D.
Tenn.
Feb.
18,
2011)
(finding
28
that
plaintiff
had
not
demonstrated that denials of her requests for reassignment were
adverse
employment
actions
and
finding
that
her
subjective
impressions about the desirability of one position over another
were not relevant).12
The fourth action Taylor points to is the IRS’ failure to
remove information about her three-day suspension in 2005 from
OPM’s records.
(See Pl.’s Resp. 18.)
As a threshold matter,
Taylor’s evidence that OPM has a record of her suspension is an
exhibit that states she received a three-day suspension at her
office, the Department of the Treasury, but gives no indication
on its face that it is from OPM’s records.
H, ECF No. 63-8.)
(See id. at 4; Ex.
Even if the record were from OPM, Taylor has
offered no evidence that maintenance of the record has caused
her any harm.
Taylor received a rating of “Outstanding” and a
perfect score in her performance appraisal and was promoted in
2006.
(See Def.’s Mots. 3; Pl.’s Resp. 3, 7; Def.’s Reply 3.)
In the context of negative performance evaluations, courts
have
held
that
“a
negative
performance
evaluation
does
not
constitute an adverse employment action, unless the evaluation
has
an
adverse
impact
[on]
an
employee’s
wages
or
salary.”
Blackburn, 2011 WL 692808, at *18 (quoting Tuttle v. Metro.
12
Because Taylor has not demonstrated that the denial of her applications
constitutes an adverse employment action, the Court need not consider
Geithner’s argument that the Court may not consider these discrete acts under
National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002).
(See
Def.’s Reply 3-4.)
29
Gov’t of Nashville, 474 F.3d 307, 322 (6th Cir. 2007)); accord
Kyle-Eiland v. Neff, 408 F. App’x 933, 941 (6th Cir. 2011).
“Thus, to characterize a negative performance evaluation as an
adverse
employment
action
‘the
plaintiff
must
point
to
a
tangible employment action that she alleges she suffered, or is
in
jeopardy
evaluation.’”
of
suffering,
because
of
the
downgraded
Blackburn, 2011 WL 692808, at *18 (quoting White
v. Baxter Healthcare Corp., 533 F.3d 381, 402 (6th Cir. 2008));
see also Kyle-Eiland, 408 F. App’x at 941.
Because Taylor has
offered no evidence that the maintenance of the record had any
consequence
for
her,
she
has
not
demonstrated
constitutes an adverse employment action.
at
995;
Blackburn,
2011
WL
692808,
at
that
it
See Hunter, 565 F.3d
*18;
Brown,
2006
WL
517684, at *16; see also Hollins v. Atl. Co., 188 F.3d 652, 662
(6th Cir. 1999) (“Hollins failed to establish a prima facie case
of retaliation because she produced no evidence to show that the
lowered performance ratings actually had an effect on her wages
such
that
a
court
may
conclude
adverse employment action.”).
that
there
was
a
materially
A reasonable worker would not be
dissuaded from making or supporting a charge of discrimination
by an employer maintaining a record without consequences for the
worker.
See Thompson, 131 S. Ct. at 868; Burlington N. & Santa
Fe Ry. Co., 548 U.S. at 68.
30
After
arguing
constitute
adverse
examples
of
that
the
four
employment
actions
that
actions
actions,
she
claims
discussed
above
provides
other
Taylor
are
adverse
employment
actions in her discussion of the causation element of her prima
facie case.
letter
(See Pl.’s Resp. 19-21.)
Shields
a
gave
her
written
for
failing
command
is
reprimand
action.
(See id. at 3, 19-20.)
She argues that the
to
and
follow
the
constitutes
chain
an
of
adverse
The letter does not purport to
be a disciplinary action: it states that “[r]efusing to follow
the chain of command may be considered an act of insubordination
and could lead to disciplinary actions.”
(emphasis added); see Pl.’s Resp. 3.)
(Ex. C, ECF No. 63-3
Taylor offers no evidence
that the letter had any effect on her employment.
She received
a rating of “Outstanding” and a perfect score in her performance
appraisal and was promoted in 2006.
Resp. 3, 7; Def.’s Reply 3.)
(See Def.’s Mots. 3; Pl.’s
Therefore, Shields’ giving Taylor
the letter does not constitute an adverse employment action.
See
Hunter,
565
F.3d
at
995;
see
also
Haynes
v.
Level
3
Commc’ns, LLC, 456 F.3d 1215, 1224 (10th Cir. 2006) (“A written
warning may be an adverse employment action only if it effects a
significant
change
in
the
plaintiff’s
employment
status.”);
Whittaker v. N. Ill. Univ., 424 F.3d 640, 648 (7th Cir. 2005)
(concluding
that
written
warnings
without
any
tangible
employment consequences were not adverse employment actions);
31
Jones v. Butler Metro. Hous. Auth., 40 F. App’x 131, 137 (6th
Cir. 2002) (“Unless the letter [of reprimand] accompanied some
other action, such as a demotion or salary reduction, it is not
an adverse employment action.”) (citations omitted); Mendoza v.
AutoZone, Inc., No. 3:08CV2321, 2010 WL 1956549, at *7 (N.D.
Ohio May 14, 2010) (“Being disciplined or counseled is similarly
not alone an adverse employment action.”) (citations omitted).
A
reasonable
worker
would
not
be
dissuaded
from
making
or
supporting a charge of discrimination by a warning without any
effects.
See Thompson, 131 S. Ct. at 868; Burlington N. & Santa
Fe Ry. Co., 548 U.S. at 68.
Taylor argues that a letter Shields gave her warning her
not to use a cellular phone in the work area is an adverse
action.
(See Pl.’s Resp. 3; Ex. D, ECF No. 63-4.)
does not purport to be disciplinary action.
The letter
(See Ex. D.)
It
states that, if Taylor were observed using her cellular phone in
the work area again, “disciplinary action may be taken.”
(emphasis added))
(Id.
Taylor offers no evidence that the letter had
any effect on her employment.
adverse employment action.
Therefore, the letter was not an
See Thompson, 131 S. Ct. at 868;
Burlington N. & Santa Fe Ry. Co., 548 U.S. at 68; Hunter, 565
F.3d at 995; see also Haynes, 456 F.3d at 1224; Jones, 40 F.
App’x at 137.
32
Taylor argues that her three-day suspension beginning on
May 9, 2005, constitutes an adverse action.13
3, 20.)
63-2.)
The suspension was without pay.
(See Pl.’s Resp.
(See Ex. B, ECF No.
Although the IRS agreed to remove the record of her
suspension from WebSETR in the settlement agreement, there is no
evidence that Taylor received back pay.
1.)
(See Ex. 7, ECF No. 53-
“The loss of a salary for a period of months, weeks, or
days is a ‘materially adverse’ action which ‘well might have
dissuaded a reasonable worker from making or supporting a charge
of discrimination.’”
Alvarez v. Royal Atl. Developers, Inc.,
610 F.3d 1253, 1268 (11th Cir. 2010) (quoting Burlington N. &
Santa Fe Ry. Co., 548 U.S. at 68)).
suspension
Taylor
received
Therefore, the three-day
satisfies
the
adverse
action requirement of Taylor’s prima facie case.
employment
See id.; see
also LeMaire v. La. Dep’t of Transp. & Dev., 480 F.3d 383, 390
(5th Cir. 2007) (concluding that a two-day suspension without
pay was an adverse employment action) (citing Burlington N. &
Santa Fe Ry. Co., 548 U.S. at 68).
The only adverse employment action Taylor suffered was her
three-day suspension on May 9, 2005.
13
To establish a prima facie
Taylor states that a document reflecting her three-day suspension shows
that she was suspended for three days on May 5, 2005.
(See Pl.’s Resp. 8;
Ex. H, ECF No. 63-8.) The document she cites states that she was suspended
on May 9, 2005. (See Ex. H, ECF No. 63-8; see also Ex. B, ECF No. 63-2 (“It
is my decision that you be suspended from duty and pay for a period of three
calendar days commencing 4:00 p.m. May 9, 2005. You will return to duty at
4:00 p.m. May 12, 2005.”).) Therefore, the Court concludes that her threeday suspension began on May 9, 2005.
33
case of retaliation, Taylor must demonstrate a causal connection
between
her
protected
activity
and
her
three-day
See Hunter, 565 F.3d at 996 (citation omitted).
suspension.
“To establish a
causal connection, a plaintiff must proffer evidence sufficient
to
raise
the
inference
that
her
protected
likely reason for the adverse action.”
activity
was
the
Michael v. Caterpillar
Fin. Servs. Corp. 496 F.3d 584, 596 (6th Cir. 2007) (quoting
Dixon v. Gonzales, 481 F.3d 324, 333 (6th Cir. 2007)).
“Generally,
temporal
establish a causal link.”
proximity
alone
is
not
enough
to
Edmond v. State of Tenn. Dep’t of
Prob. & Parole, 386 F. App’x 507, 514 (6th Cir. 2010) (citations
omitted).
However, temporal proximity may suffice to establish
a causal link in some circumstances:
Where an adverse employment action occurs very close
in time after an employer learns of a protected
activity, such temporal proximity between the events
is significant enough to constitute evidence of a
causal connection for the purposes of satisfying a
prima facie case of retaliation. But where some time
elapses between when the employer learns of a
protected
activity
and
the
subsequent
adverse
employment action, the employee must couple temporal
proximity with other evidence of retaliatory conduct
to establish causality.
Mickey v. Zeidler Tool & Die Co., 516 F.3d 516, 525 (6th Cir.
2008) (citing Little v. BP Exploration & Oil Co., 265 F.3d 357,
365 (6th Cir. 2001)); accord Grubb v. YSK Corp., 401 F. App’x
104,
112
premise
(6th
that
Cir.
in
2010)
certain
(“[T]his
distinct
34
Circuit
cases
has
where
embraced
the
the
temporal
proximity
between
the
protected
activity
and
the
adverse
employment action is acutely near in time, that close proximity
is deemed indirect evidence such as to permit an inference of
retaliation to arise.” (quoting DiCarlo v. Potter, 358 F.3d 408,
421
(6th
Cir.
sometimes
2004))).
sufficient
The
is
reason
that
“if
temporal
an
employer
proximity
is
immediately
retaliates against an employee upon learning of his protected
activity,
the
employee
would
be
unable
to
couple
temporal
proximity with any such other evidence of retaliation because
the two actions happened consecutively, and little other than
the protected activity could motivate the retaliation.”
516 F.3d at 525.
Mickey,
“Thus, employers who retaliate swiftly and
immediately upon learning of protected activity would ironically
have a stronger defense than those who delay in taking adverse
retaliatory action.”
cases.”
F.3d
Id.
Such circumstances arise “in rare
Id.; accord Vereecke v. Huron Valley Sch. Dist., 609
392,
401
(6th
Cir.
2010)
(“[W]e
have
rarely
found
a
retaliatory motive based only on temporal proximity.”); Evans v.
Prospect Airport Servs., Inc., 286 F. App’x 889, 895 (6th Cir.
2008) (stating that temporal proximity is sufficient “in a small
subset of cases”).
“Beyond temporal proximity, other indicia of retaliatory
conduct would include evidence that the plaintiff was treated
differently,
either
less
positively
35
or
more
negatively,
than
similarly situated employees who had not exercised Title VII
rights, or evidence that the plaintiff was subjected to closer
disciplinary
Novotny
v.
scrutiny
Elsevier,
after
291
F.
exercising
Title
App’x
705
698,
VII
(6th
rights.”
Cir.
2008)
(quoting Evans, 286 F. App’x at 895).
Here,
Taylor
differently
argues
from
in
her
Stephanie
brief
that
Boone-Gage
she
was
(“Boone-Gage”),
employee who had cursed at her and threatened her.
Resp. 20.)
treated
an
(See Pl.’s
Taylor offers no evidence that Boone-Gage had not
exercised Title VII rights.
Taylor also offers no evidence of
her own conduct preceding her suspension other than that she was
suspended “for creating a disturbance in the workplace.”
id. at 8; Ex. H, ECF No. 63-8.)
offers,
the
Court
cannot
(See
Based on the evidence Taylor
compare
Taylor’s
and
Boone-Gage’s
conduct to determine whether they were similarly situated but
treated differently.
Because the only evidence of Boone-Gage’s
conduct is Taylor’s assertions in her brief, which contain no
citations to any evidence of Boone-Gage’s conduct, Taylor has
offered
no
admissible
evidence
suggesting
that
a
similarly-
situated employee who had not exercised Title VII rights was
treated differently from her.
See InterRoyal Corp., 889 F.2d at
111; Cloverdale Equip. Co., 869 F.2d at 937; Blackburn, 2011 WL
692808,
at
*1-2;
see
also
United
States
v.
$30,000
in
U.S.
Currency, 30 F. App’x 473, 484 (6th Cir. 2002) (“When a motion
36
for
summary
admissible
pleadings
judgment
evidence,
but
must
is
made
the
and
non-movant
come
forward
supported
by
may
rest
with
not
affidavits
competent
on
or
his
other
admissible evidence setting forth specific facts showing there
is a genuine issue for trial.”) (citation omitted); Tucker v.
SAS Inst., Inc., 462 F. Supp. 2d 715, 723 (N.D. Tex. 2006)
(“Unless the assertions contained in the plaintiff’s brief are
supported by accurate citations to the record, they are merely
‘unsubstantiated
assertions’
which
are
not
competent
summary
judgment evidence.”); Boyer v. Gildea, No. 1:05-CV-129-TS, 2005
WL 2648673, at *3 (N.D. Ind. Oct. 17, 2005) (“Factual assertions
made by a party opposing summary judgment that are not supported
by admissible evidence cannot create a genuine issue of fact.”).
Taylor offers no direct evidence that the decisionmakers at
the IRS responsible for her suspension considered her protected
activity.
The only evidence on the record suggesting a causal
connection
between
suspension
is
her
temporal
protected
activity
proximity.
and
Before
her
her
three-day
three-day
suspension began on May 9, 2005, Taylor filed a formal complaint
alleging
discrimination
on
June
25,
2004;
filed
a
formal
complaint alleging retaliation on September 3, 2004; contacted
an EEO counselor in late September or early October to allege
that Shields had retaliated against her by sending her a written
warning on September 27, 2004; contacted an EEO counselor at
37
some point later in 2004; and filed “an informal EEO retaliation
complaint, or pre-complaint [on April 13, 2005], concerning the
three-day
suspension
that
was
proposed
and
that
later
(Ex. I, ECF No. 63-9; see Pl.’s Resp. 5.)
imposed” on her.
was
By
doing so, Taylor engaged in protected activity before her threeday suspension.
See, e.g., Lindsay, 578 F.3d at 418; Blume v.
Potter, 289 F. App’x 99, 105 (6th Cir. 2008).
Because no evidence of retaliatory conduct exists on the
record
beyond
temporal
proximity,
that
several
months
had
elapsed between Taylor’s protected activities in 2004 and her
three-day suspension on May 9, 2005, is not sufficient to raise
an
inference
reason
for
that
her
her
protected
suspension.
activities
See
Mickey,
were
516
the
F.3d
likely
at
525;
Michael, 496 F.3d at 596; see also Blume, 289 F. App’x at 106
(concluding
that
a
six-month
period
between
an
employee’s
protected activity and an adverse action was insufficient to
demonstrate causation); Arendale v. City of Memphis, 519 F.3d
587, 606 (6th Cir. 2008) (rejecting plaintiff’s argument that
retaliatory events occurring two months after an EEOC charge of
discrimination
were
sufficient
to
establish
causation
and
affirming summary judgment for the defendant).
Although
complaint,
or
Taylor
filed
pre-complaint”
“an
on
informal
April
13,
EEO
2005,
retaliation
about
the
pending three-day suspension she eventually began serving on May
38
9,
2005,
that
is
not
the
proper
sequence
of
events
to
demonstrate that protected activity caused an adverse employment
action.14
F.3d
668,
See Leitgen v. Franciscan Skemp Healthcare, Inc., 630
676
(7th
Cir.
2011)
(concluding
that,
where
two
supervisors had discussed ways to discipline an employee before
the employee engaged in protected activity, the employee could
not establish causation although she was forced to resign soon
after
her
protected
activity).
explained,
temporal
proximity
establish
causation
because
no
As
is
the
Sixth
sometimes
other
evidence
Circuit
has
sufficient
to
of
causation
exists when employers immediately retaliate against employees
after learning of protected activity.
525.
See Mickey, 516 F.3d at
That reasoning does not justify finding causation where,
as here, an employee suspects she may be disciplined in the
future for her present actions, engages in protected activity to
protest the possible future imposition of the discipline, and
the employer later imposes the discipline the employee thought
See Leitgen, 630 F.3d at 675-76; see also
would be imposed.
Dansler-Hill v. Rochester Inst. of Tech., 764 F. Supp. 2d 577,
582 (W.D.N.Y. 2011).
The
suspension
order
does
of
events
not
raise
surrounding
an
14
inference
Taylor’s
three-day
that
protected
her
Although Taylor filed the informal complaint or pre-complaint on April 13,
2005, the IRS did not send her a letter proposing to suspend her for three
days until April 15, 2005, and did not issue a final decision to suspend her
until May 2, 2005. (See Ex. B, ECF No. 63-2.)
39
activity was the likely reason for the three-day suspension.
See Leitgen, 630 F.3d at 675-76; Dansler-Hill, 764 F. Supp. 2d
at 582.
This is not an exceptional case in which temporal
proximity sufficiently demonstrates causation.
609 F.3d at 401; Evans, 286 F. App’x at 895.
See
Vereecke,
There is no reason
to deviate from the general rule that temporal proximity alone
See Edmond, 386 F.
is not sufficient to establish causation.
App’x
at
514.
Because
Taylor
has
not
proffered
sufficient
evidence to raise the inference that her protected activity was
the likely reason for her three-day suspension, she has not
established a prima facie case of retaliation.
F.3d at 996; Michael, 496 F.3d at 596.
See Hunter, 565
No reasonable jury could
find the causation requirement satisfied.
Therefore, Geithner’s
summary judgment motion must be granted.
See Hunter, 565 F.3d
at 996-97.
V.
Conclusion
For
the
foregoing
reasons,
Geithner’s
Motion
to
Dismiss
Taylor’s breach of settlement agreement claim is GRANTED, and
his Motion for Summary Judgment on Taylor’s retaliation claim is
GRANTED.
All pending motions are DENIED as moot.
So ordered this 6th day of July, 2011.
s/ Samuel H. Mays, Jr.
SAMUEL H. MAYS, JR.
UNITED STATES DISTRICT JUDGE
40
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