On July 10, 2009, the US Court of Appeals for the District of Columbia Circuit ruled that an employee who unreasonably failed promptly to complain of sexual harassment and who did not suffer any material adverse treatment in retaliation for making the complaint could not prevail on such claims under Title VII. Taylor v. Solis, No. 07-5401 (D.C. Cir. July 10, 2009).

Ruby Taylor sued her employer, the Pension Benefit Guaranty Corporation (PBGC or the 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 PBGC, and Taylor appealed.

According to the facts alleged by Taylor, which the DC Circuit accepted, Taylor was an auditor in the Pre-Termination Process Division (PPD) of the PBGC.  Her 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 alleged her supervisors created a sexually charged atmosphere at the PPD.  She claimed Henkel, Joy and Hagans occasionally flirted with female employees, but particularly offensive to her 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 of that year, Bacon began intimating Taylor was not in love with her fiancé, 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 allegedly 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, allegedly 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 filed suit in the district court on August 19, 2003.  

Taylor also alleged her supervisors retaliated against her in response to her complaint and her lawsuit.  In 2002 Hagans allegedly 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 absent without leave (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 establishing 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 ultimately granted the PBGC’s motion for summary judgment. 

The Sexual Harassment Claim

According to the US Court of Appeals for the District of Columbia Circuit, Title VII makes it unlawful for a supervisor to create a hostile environment based upon an employee’s sex.    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.”  An 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.” 

The PBGC argued 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.  Taylor did not challenge the adequacy of the Corporation’s procedure.  Therefore, the PBGC could avoid liability if it showed “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.’”   

The DC Circuit agreed 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 who believes and tells others she is being sexually harassed would report it if she knows — as Taylor should have and apparently did know — a complaint procedure has been established for that purpose.”  The appeals court reasoned that when Taylor finally did report Bacon’s conduct in April 2002, the PBGC duly investigated and, even though it did not find harassment, the sort of conduct about which Taylor had complained did not recur.

Taylor argued she effectively notified the PBGC’s management of her complaint in the fall of 2001 when she confided in her friend Smith.  The DC Circuit concluded, however, that Taylor could not reasonably have believed talking to Smith was a substitute for using the agency’s complaint procedure.  Although Smith, as a member of management, may have had, as the policy states, a “particular responsibility” to address workplace discrimination, he was neither Bacon’s supervisor nor an EEO officer.  The policy expressly required Taylor, if she believed she was being harassed, “immediately [to] contact an EEO Counselor or the EEO Manager.”  According to the court, “[h]aving ignored the complaint procedure, Taylor cannot now complain that Smith should have filed a formal complaint on her behalf or himself reprimanded Bacon, who did not report to him.” 

Taylor argued in the alternative that her delay in filing a complaint, from the fall of 2001 to April 2002, was not unreasonable.  But, the appeals court found that a delay of five or six months was “anything but prompt.”  Taylor also suggested various “factors” showed her delay was reasonable, but only one warranted mention by the court.  According to Taylor’s first EEO complaint, Bacon told her in 2001 “no one would believe” her if she reported him; “they would think ... [she was] the problem.”  The DC Circuit concluded that “[a] reasonable jury could not find Taylor was reasonably deterred by Bacon’s statement.  Bacon did not threaten Taylor with an adverse employment action and, indeed, he could not have done because he was not her supervisor and did not have the authority to evaluate her performance or to take any action against her.”  The DC Circuit therefore affirmed the district court’s judgment on the sexual harassment claim.

The Retaliation Claim 

The appellate court turned next to Taylor’s retaliation claim.  In order to prevail upon a claim of unlawful retaliation, an employee must show “she engaged in protected activity, as a consequence of which her employer took a materially adverse action against her.”  A materially adverse action is one that “could well dissuade a reasonable worker from making or supporting a charge of discrimination.”  The district court held Taylor had failed to show that her filing the April 2002 complaint had been the cause of four of the reprisals she alleged, had failed to show material adversity with respect to one, and had failed to rebut the PBGC’s nondiscriminatory explanation of another.  The DC Circuit affirmed the district court on the ground that five of the six alleged reprisals were not materially adverse actions and Taylor could not show the sixth was retaliatory.

First, Hagans criticized Taylor for exhibiting “negative behaviors.” The court held that the criticism was not a materially adverse action because “petty slights [and] minor annoyances” would not deter a reasonable employee from making a charge of discrimination. 

Second, Henkel and Joy allegedly slowed the processing of Taylor’s cases after she filed her complaint and Joy and Henkel required her (as they had some other auditors) to submit biweekly reports on the status of her work.  According to the DC Circuit, “[s]uch minor “inconveniences and alteration of job responsibilities [do] not rise to the level of adverse action” necessary to support a claim. 

Third, Taylor claimed Joy did not recommend her for a position the PBGC was considering creating but ultimately did not establish. Although a refusal to promote is a materially adverse action, the DC Circuit reasoned that “because there was no position to which she might have been promoted, Taylor was not denied a tangible opportunity to advance her career.” 

Fourth and fifth,  Taylor’s supervisors twice lowered her performance evaluation — from “Outstanding” in 2001, to “Excellent” in 2002, and to “Fully Effective” in 2003.  In order for a performance evaluation to be materially adverse, it must affect the employee’s “position, grade level, salary, or promotion opportunities.”  The court held that Taylor’s bare, conclusory allegation that she was denied promotional and bonus opportunities “[a]s a result of PBGC’s unlawful conduct in violating Title VII’s prohibition against retaliation” did not discharge her burden to show the evaluations were “attached to financial harms.” 

Sixth, Taylor was temporarily listed as AWOL in the first or second week of November 2003.  Although the PBGC ultimately rescinded the listing and gave Taylor her lost pay, the court observed that the temporary deprivation of wages counts as a materially adverse action.  However, the Corporation offered a nondiscriminatory reason for the challenged action: the Human Resources Department directed Henkel to list Taylor as AWOL because the leave slip she submitted appeared to indicate Taylor had not obtained Henkel’s prior approval, as all auditors were required to do.  After Taylor had returned to work and the confusion was eventually dispelled, the AWOL charge was rescinded and Taylor’s pay restored.  Therefore, “no reasonable jury could infer the PBGC retaliated against Taylor when it treated her as having taken leave without permission.”   Thus, the DC Circuit also affirmed the dismissal of the retaliation claim.

Conclusion

The Taylor decision underscores the importance of having a comprehensive policy against all forms of unlawful discrimination and harassment, and detailing a specific complaint procedure that should be followed.  Although the court in this particular instance found that Taylor’s oral complaint to another supervisor was not sufficient to invoke the complaint procedure, we nevertheless recommend that any time a supervisor learns of allegations of such nature, he or she should immediately report them to the Human Resources Department and/or senior management.

Taylor also is noteworthy because it demonstrates that given the right facts, an employer can effectively defeat a retaliation claim if it shows no material adverse action was taken against the employee, and/or that there was no causal connection between the complaint and the alleged adverse action.

The Arent Fox Employment Law Group regularly advises clients on discrimination, harassment and retaliation law compliance, and defends them against claims of such conduct before agencies and courts across the country. If you have any questions about the Taylor decision or equal employment opportunity law in general, please feel free to contact us.

Michael L. Stevens
stevens.michael@arentfox.com
202.857.6382