Gaujacq v. EDF, Inc.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 21, 2009 Decided April 9, 2010

No. 08-7097

CATHERINE GAUJACQ,

APPELLANT

v.

EDF, INC., ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:05-cv-00969)

Carla D. Brown argued the cause for appellant. With her

on the briefs were Elaine Charlson Bredehoft and Kathleen Z.

Quill.

Laura B. Hoguet argued the cause for appellees EDF, Inc.,

et al. With her on the brief was Dorothea W. Regal.

Morgan D. Hodgson was on the brief for appellee Christian

Nadal.

Before: HENDERSON, Circuit Judge, and EDWARDS and

WILLIAMS, Senior Circuit Judges.

2

Opinion for the Court filed by Senior Circuit Judge

EDWARDS.

EDWARDS, Senior Circuit Judge: Appellant Catherine

Gaujacq filed a complaint in District Court against her former

employers, Electricité de France, S.A. (“EDF”) and Electricité

de France International North America, Inc. (“EDFINA”),

claiming violations of Title VII of the Civil Rights Act of 1964

(“Title VII”), 42 U.S.C. § 2000e et seq., the District of

Columbia Human Rights Act (“DCHRA”), D.C. CODE § 2-

1401.01 et seq., and the Equal Pay Act, 29 U.S.C. § 206(d), and

asserting several common law claims. Gaujacq also filed a

complaint against Christian Nadal, who succeeded her in the

positions that she had held in EDF and EDFINA, alleging that

Nadal aided and abetted EDF’s discrimination and retaliation in

violation of the DCHRA, tortiously interfered with her

contractual and business relations, and defamed her. The

District Court granted summary judgment in favor of appellees

on all counts. See Gaujacq v. Electricite de France Int’l N. Am.,

Inc., 572 F. Supp. 2d 79, 84 (D.D.C. Aug. 21, 2008).

Appellant does not contest the District Court’s awards of

summary judgment for the appellees on the tortious interference

claim against EDF and the defamation claims against EDF and

Nadal. She does, however, seek review of the District Court’s

summary judgment against her on her remaining Title VII,

DCHRA, Equal Pay Act, and common law claims.

We affirm the District Court’s summary judgment in favor

of EDF on appellant’s Title VII and DCHRA gender-based

employment discrimination claims, and its summary judgment

in favor of Nadal on the related aiding and abetting

discrimination claims. The District Court correctly concluded

that no reasonable jury could find that the nondiscriminatory

business reasons given by EDF to explain company actions

relating to appellant’s employment were a pretext for gender-

based discrimination. We also affirm the District Court’s

3

summary judgment in favor of EDF on appellant’s Equal Pay

Act claim. The District Court correctly found that any

differential in pay between appellant and Nadal was based on

factors other than sex. We further affirm the District Court’s

summary judgment in favor of EDF on appellant’s retaliation

claim and summary judgment in favor of Nadal on the related

aiding and abetting claims. A reasonable jury could not infer

from all the evidence that EDF’s legitimate, nondiscriminatory

business decisions were retaliation against appellant; nor has

appellant shown that a disputed negative comment made to her

by an EDF official was “harmful to the point that [it] could well

dissuade a reasonable worker from making or supporting a

charge of discrimination.” Burlington N. & Santa Fe Ry. Co. v.

White, 548 U.S. 53, 57 (2006). Finally, we affirm the District

Court’s judgments against appellant on all but one of her

remaining common law claims. Appellant’s complaint asserts

a breach of contract claim against EDF due to the employer’s

alleged failure to reimburse her for certain business expenses.

Because the District Court never addressed this issue, we

remand the case to allow the trial court to consider the matter in

the first instance. Appellant’s remaining claims were properly

dismissed.

I. BACKGROUND

A. Factual Background

The facts in this case are amply drawn in the District

Court’s opinion. See Gaujacq, 572 F. Supp. 2d at 83-86.

Therefore, we will focus on the salient undisputed, material

facts, see FED. R. CIV. P. 56(c), to amplify our judgment.

Appellee EDF is a French corporation that generates and

supplies electricity in France and other countries. Previously a

state-owned company, EDF became a private corporation in

November 2004 and first sold shares to the public in 2005.

EDF’s wholly owned subsidiary, EDFINA, functions as EDF’s

4

representative in Washington, D.C. After oral argument in this

case, EDFINA merged into EDF Development – now known as

EDF Inc. – which remains wholly owned by EDF.

Appellant Catherine Gaujacq was hired by EDF in 1980

after she graduated from engineering school. She continued to

work for EDF until she was terminated on January 6, 2005.

Gaujacq earned a number of promotions during her tenure with

EDF. Her first management position came in 1994, when she

became head of operations at a French nuclear plant. Gaujacq

was the first woman in France to achieve such a position.

Christian Nadal was hired by EDF as a high-level executive

in 1988. Before coming to EDF, Nadal had served for four

years as the General Secretary for the French National Coal

Board. In addition to holding a number of top management

positions at EDF, Nadal served on the company’s Executive

Committee from 1995 to 1999. From 1999 to 2001, he served

as the CEO of EDENOR, an Argentinian energy company in

which EDF held an equity interest.

During the time when Gaujacq worked at EDF, the salaries

of high-level executives were determined pursuant to a pay

grade system. In 2000, EDF adopted the designations R-1

through R-4 (with R-1 as the highest rank) to classify executives

under the pay grade system. A number of elements – including

“the level of experience of [a] person within the company and

outside of the company” – were taken into account to determine

whether an executive was classified R-1 under the pay grade

system. Dep. of Patrick de Botherel, EDF’s Director of

Executive Compensation and Benefits, at 45 (Mar. 23, 2006),

reprinted in 3 Joint Appendix (“J.A.”) 1073. Only 50 people out

of EDF’s more than 160,000 employees held the R-1 rank.

Nadal, who was already a senior executive when the R-1 to R-4

ranking system was established, was classified R-1.

5

Gaujacq was promoted to the senior executive level in 2000

and classified R-3 under the pay grade system. She was

appointed to serve as Délégué Général (General Delegate) for

the United States and Canada, the company’s top North

American position, and President and Treasurer of EDFINA.

Gaujacq’s “substantial experience” in the area of “nuclear

energy” made her “well-suited for EDF’s goal[s]” in the United

States at the time: “to study the U.S. energy developments,

reinforce [EDF’s] reputation for nuclear expertise within the

U.S. energy industry community and position [the company] for

possible business involvement in the nuclear area in the United

States.” Decl. of Yann Laroche, EDF’s General Manager of

Human Resources in 2003 and 2004 and a member of its

Executive Committee, ¶¶ 7-8 (Oct. 12, 2006), reprinted in 4 J.A.

1687-88. Gaujacq signed a three-year contract with EDF (the

“2000 Expatriate Contract”), with an option to extend for an

additional year by mutual consent. As part of her new job

assignment, Gaujacq served as EDFINA’s representative to

NuStart Energy Development, LLC (“NuStart”), a consortium

of energy companies working toward developing a nuclear

energy plant that could be built within U.S. regulatory

constraints.

When Gaujacq assumed her new positions in 2000, it was

standard practice for EDF to rotate executives through its top

positions in Washington, D.C. In the decade preceding

Gaujacq’s 2000 promotions, four executives had served as both

the head of EDF’s delegation in Washington, D.C. and President

of EDFINA. Typically, these executives served for a term of

two to four years, before moving on to new positions. Gaujacq

sought to break this practice when she requested a new three-

year contract in January 2003. However, EDF officials declined

and merely extended her 2000 Expatriate Contract for one

additional year, with a contract expiration of July 31, 2004.

6

In December 2003, EDF’s President, Chairman, and CEO,

Francois Roussely, offered Nadal the position of General

Delegate for North America. By the end of 2003, EDF’s

strategic goals and business plans with respect to the United

States had changed. The company “wanted to increase its

profile in the United States” and, to that end, it sought to “send

a top-level executive to Washington as its ‘ambassador’ . . . to

deal with the strategic, financial[,] and political issues”

associated with its goal of entering into commercial ventures

with energy partners in the United States. Laroche Decl. ¶ 12,

4 J.A. 1688-89. Company officials considered Nadal to be well

qualified to assume these responsibilities. After accepting

Roussely’s offer, Nadal was appointed EDF’s General Delegate

for North America on January 1, 2004.

Gaujacq knew by January 28, 2004 that Nadal had been

appointed to the General Delegate position and she had reason

to know that the person in that position typically was appointed

President of EDFINA. Gaujacq claims that EDF’s Chief

Operating Officer (“COO”), Gerard Creuzet, told her in January

2004 that she would remain President of EDFINA until at least

2005. In truth, however, Gaujacq had no such agreement with

EDF to extend her term as President of EDFINA. Gaujacq

nonetheless acted on her own accord and sent emails to the head

of EDF’s Americas Branch (to whom she reported) expressing

her understanding that Nadal would come on board to develop

EDFINA’s knowledge of the gas industry, while she would

remain in charge of EDFINA and NuStart.

During the first half of 2004, there was mounting tension

between Gaujacq and Nadal. Gaujacq continued to demand her

own way even though she knew that she had no agreement with

EDF to continue as General Delegate or President of EDFINA.

After Gaujacq and Nadal met for the first time in person on

February 25, 2004, Gaujacq introduced him to the Washington

office as a senior advisor focusing on gas and equity markets.

7

Nadal promptly contacted top officials in EDF to clear up any

confusion over their positions. By early March, Nadal indicated

that he was having trouble working with Gaujacq, because she

continued to express her belief that Nadal’s assignment in

Washington, D.C. was limited to the gas market and certain

financial issues. Nadal again requested “prompt and strong

clarification” from EDF officials regarding his position. Email

from Christian Nadal to François Metais (Mar. 10, 2004)

(translation), reprinted in 3 J.A. 1379. Nadal made it clear that

he could not share responsibilities with Gaujacq. Id.

On March 22 and 23, Gaujacq met with EDF’s leadership

in Buenos Aires. She was clearly told that Nadal would be

President of EDFINA and that she would need to prepare a new

mission for herself. On March 25, Gaujacq sent COO Creuzet

a proposal pursuant to which she would be in charge of NuStart

and report directly to the heads of EDF’s Americas Branch and

its Energy Branch – rather than to Nadal – as part of a new

three-year expatriate assignment in Washington. But there are

no facts showing that EDF and Gaujacq ever agreed on this

arrangement. Creuzet initially told Gaujacq that her proposal

was “well in line with our discussions last week in Buenos-

Aires,” that he had “no particular comments,” and that he would

“forward it to [Laroche] to get his comments.” Email from

Gerard Creuzet to Yann Laroche (Mar. 29, 2004) (translation),

reprinted in 3 J.A. 1352. The next week, Creuzet proposed an

arrangement different from the one sought by Gaujacq. Creuzet

and Gaujacq continued to negotiate over her position with EDF

through a series of emails. However, Gaujacq never secured an

agreement from EDF to extend her contract for another three

years, as she preferred. And Nadal continued to express his

desire to terminate Gaujacq’s activity in his office, stating that

she had created a situation that made it impossible for the two to

collaborate. Although Gaujacq was never given a three-year

contract extension, EDF officials attempted to accommodate her

8

preference to remain in the United States by offering her a

position as a Vice President of EDFINA.

On May 31, Gaujacq took the title of Vice President of

EDFINA, a rank she shared with EDFINA’s other Vice

President, Bernard Dreux. Gaujacq retained her R-3 executive

classification, along with her existing salary and benefits. Nadal

officially took over as President of EDFINA the next day.

Nadal’s arrival in the United States precipitated further

deterioration in his relationship with Gaujacq. Beginning in

June, Gaujacq stopped coming into the EDFINA offices on a

regular basis. Gaujacq also sent an unauthorized memo to staff

purporting to assign responsibilities for gas and finance matters

to Nadal and nuclear matters to herself. Days later, Gaujacq left

a conference early and skipped a meeting with Nadal which had

been scheduled to discuss her responsibilities as Vice President

of EDFINA. Gaujacq initially claimed that she was forced to

miss the meeting to return to France to take care of her sick

mother-in-law, but this turned out to be a fabrication. Gaujacq

also kept confidential documents related to NuStart in her home

and refused to return the company documents to the EDFINA

offices. Meanwhile, Nadal had revoked Gaujacq’s authority to

sign checks for EDFINA and designated Dreux as the person

who would act as President in Nadal’s absence.

In July, Gaujacq complained in writing to top officials at

EDF that “Nadal tries, by all means, to prevent me from doing

my job and takes discriminatory measures against me.” Email

from Catherine Gaujacq to Francois Roussely and Gerard

Creuzet (July 22, 2004) (translation), reprinted in 4 J.A. 1496.

She indicated that she would “defend [her]self against [Nadal]

by filing a complaint,” id., and she also sent an email to Nadal

complaining of his treatment of her. Email from Catherine

Gaujacq to Christian Nadal (July 22, 2004), 5 J.A. 2296-97. She

further complained by phone to senior EDF officers. Gaujacq’s

notes reflect that in one such conversation, COO Creuzet told

9

her that he did “not have time to discuss the differences of views

between managers” and stated, “[y]our career is dead in EDF if

you file the claim.” Defs.’ Statements Pursuant to FED. R. CIV.

P. 56.1 and Local Rule 7(h) Ex. 70, reprinted in 4 J.A. 1498; see

also Email from Catherine Gaujacq to Gerard Creuzet, Yann

Laroche, and Fernando Ponasso (July 25, 2004), reprinted in 4

J.A. 1505 (describing threat). Gaujacq continued to seek a

three-year extension of her expatriation contract, demanding that

company officials sign the contract, that she not report directly

to Nadal, that Nadal “not interfere” with her mission, and that

Nadal reinstate her check-signing authority and ensure her equal

status and treatment with the other EDFINA Vice President,

Bernard Dreux. See Email from Catherine Gaujacq to Gerard

Creuzet, Yann Laroche, and Fernando Ponasso (July 25, 2004),

4 J.A. 1505-06. She also requested reimbursement for her legal

fees. See id.

At the end of July 2004, EDF officials elected to let

Gaujacq’s 2000 Expatriate Contact to expire, in part because of

the “very bad relationship” between Nadal and Gaujacq. Jean-

Louis Betouret, Gaujacq Nadal Situation (July 26, 2004),

reprinted in 4 J.A. 1511-13. EDF officials decided that they

would no longer tolerate Gaujacq’s demands that she be allowed

to freelance outside of the ambit of Nadal’s leadership. The

decision to let Gaujacq’s 2000 Expatriate Contract to expire was

approved by the company’s president. Id. at 4 J.A. 1513. The

decision was consistent with EDF’s standard practice of rotating

executives through its top positions in Washington, D.C.

Creuzet wrote Gaujacq a letter on July 27 confirming that

her assignment in Washington, D.C. would end as of August 1,

2004, i.e., at the expiration of her 2000 Expatriate Contract. The

letter stated that EDF would give Gaujacq an additional three

months to arrange her move back to France and that the

company expected her to start on November 1 at a position in

France in the Energy Department that was “‘appropriate to [her]

10

level of responsibility and the experience that [she had]

acquired.’” Gaujacq, 572 F. Supp. 2d at 85 (quoting Defs. Ex.

74). The company invited her to continue discussions she had

started with the head of EDF’s Energy Branch earlier in 2004,

when he had offered her an important position working on

nuclear issues in France. The head of the Energy Branch in fact

called Gaujacq that day to discuss a project. Gaujacq conceded

that the project was “important” to EDF but “[n]ot really”

important “[f]or me.” Dep. of Catherine Gaujacq at 428 (Mar.

16, 2006), reprinted in 2 J.A. 919.

Gaujacq filed a complaint with the Equal Employment

Opportunity Commission several days later, on July 30, 2004.

In early September 2004, Gaujacq requested more information

from EDF about her potential new assignment in France. She

was advised by EDF that she would manage the development of

a new series of nuclear reactors. See Gaujacq, 572 F. Supp. 2d

at 85. Gaujacq claimed that the proposed new position was one

with lower responsibilities than her past three assignments at

EDF and that it “ha[d] no substance and [was] devised to

shel[ve] me.” Letter from Catherine Gaujacq to Bruno Lescouer

(Oct. 7, 2004) (translation), reprinted in 4 J.A. 1555. On

October 28, Gaujacq declined the new position, and she failed

to report to work as scheduled on November 2. EDF officials

met with her in December to discuss her situation, but no

satisfactory resolution of the issue was reached. Gaujacq was

terminated on January 6, 2005 after she persisted in refusing to

accept employment on the terms offered by the company.

B. Proceedings Below

On May 13, 2005, Gaujacq filed a complaint against EDF,

EDFINA, and Nadal, alleging that: (1) EDF and EDFINA (“the

company”) violated Title VII and the DCHRA by discriminating

against her based on sex, and that Nadal aided and abetted this

discrimination in violation of the DCHRA; (2) EDF and

EDFINA retaliated against Gaujacq for complaining of

11

discrimination in violation of Title VII and the DCHRA, and

that Nadal aided and abetted the company’s retaliation in

violation of the DCHRA; (3) that EDF and EDFINA violated the

Equal Pay Act; (4) that EDF and EDFINA tortiously interfered

with Gaujacq’s contractual relations with future employers and

that Nadal tortiously interfered with her contractual relations

with EDF; (5) that EDF and EDFINA breached portions of her

expatriate contract; (6) that EDF and EDFINA breached a duty

of good faith and fair dealing by willfully rendering imperfect

performance of her contracts with the company; and (7) that

EDF, EDFINA, and Nadal defamed her. See Compl. (May 13,

2005), reprinted in 1 J.A. 23-81.

Discovery closed in July 2006 and the defendants filed

motions for summary judgment on October 16, 2006. Gaujacq

moved in March 2008 for leave to supplement her opposition to

the defendants’ summary judgment motions and filed a motion

to compel discovery in April of that year. See Mot. and Mem.

for Leave to Supplement Pl.’s Opp’n to Def.’s Mot. for Summ.

J. (Mar. 5, 2008), reprinted in 7 J.A. 3227-31; Pl.’s Mot. to

Compel and for Sanctions (Apr. 23, 2008), reprinted in 7 J.A.

3372-73. Both motions were based on evidence that was

allegedly concealed by EDF and Nadal pertaining to Nadal’s

conduct while he worked in Argentina as the CEO of EDENOR.

The District Court granted summary judgment on all claims and

did not specifically address either of Gaujacq’s motions in its

order. See Gaujacq, 572 F. Supp. 2d at 83-84.

Gaujacq filed a timely appeal. She does not contest the

District Court’s grant of summary judgment on her tortious

interference with contract and business relations claims against

the company or on her defamation claims against the company

and Nadal. Gaujacq argues that the District Court erred in

dismissing her other claims, and also argues that the District

Court should have granted her motions to reopen discovery and

supplement her opposition to the summary judgment motions.

12

II. ANALYSIS

A. Standard of Review

This court reviews the District Court’s grant of summary

judgment de novo. Haynes v. Williams, 392 F.3d 478, 481 (D.C.

Cir. 2004). “Summary judgment is appropriate only if ‘there is

no genuine issue as to any material fact and . . . the moving

party is entitled to a judgment as a matter of law.’” Id. (quoting

FED. R. CIV. P. 56(c)). “A dispute about a material fact is not

genuine unless the evidence is such that a reasonable jury could

return a verdict for the nonmoving party.” Id. (internal

quotation marks omitted). In determining whether there are

genuine factual issues in dispute, the court draws all reasonable

inferences in favor of the nonmoving party. Wiley v. Glassman,

511 F.3d 151, 155 (D.C. Cir. 2007) (per curiam).

We review for abuse of discretion the motions for further

discovery and to supplement an opposition to summary

judgment. See Berkeley v. Home Ins. Co., 68 F.3d 1409, 1415

(D.C. Cir. 1995).

B. Equal Pay Act

Appellant first argues that the District Court erred in

granting summary judgment to appellee on her Equal Pay Act

Claim. We disagree. Where a plaintiff establishes a prima facie

case of disparate pay under the Equal Pay Act, a defendant can

avoid liability by pleading an affirmative defense justifying a

pay disparity if it is “pursuant to (i) a seniority system; (ii) a

merit system; (iii) a system which measures earnings by quantity

or quality of production; or (iv) a differential based on any other

factor other than sex.” 29 U.S.C. § 206(d)(1). The District

Court correctly found that EDF satisfied the fourth affirmative

defense. See Gaujacq, 572 F. Supp. 2d at 91. Gaujacq and

Nadal were paid according to their rank in EDF’s top-level

executive system, a pay scale that is based on factors other than

sex. See id. Although this system was based in part on

13

subjective factors, “subjectivity is permissible” in employment

decisions “provided that there are demonstrable reasons for the

decision, unrelated to sex.” EEOC v. Aetna Ins. Co., 616 F.2d

719, 726 (4th Cir. 1980). Moreover, EDF’s executive

compensation policy specifically states that “[e]xecutives who

hold positions at the same level do not necessarily receive the

same compensation, which will vary according to the level of

individual contribution achieved and also according to the

number of positions held within the same level.” Electricité de

France Executives Compensation Policy at 6 (translation),

reprinted in 4 J.A. 1828.

On the undisputed record in this case, there is no doubt that

the pay disparity between Nadal and Gaujacq was based on

factors other than sex. Nadal had substantially more

management experience than Gaujacq, including a stint on the

company’s Executive Committee between 1995 and 1999.

There is nothing in the record to suggest that he was unworthy

of the R-1 classification that he received in 2000. Indeed, Nadal

had been a senior executive for some time before 2000, so his

R-1 classification was hardly noteworthy. Nor is there anything

in the record to suggest that Gaujacq was undervalued when she

received an R-3 classification when she was first promoted into

the senior executive service in 2000. Furthermore, the record

indicates that EDF’s strategic goals and business plans with

respect to the United States were significantly changed and

upgraded at the time when Nadal was brought to Washington,

D.C. in 2004. Nadal was assigned to the Washington, D.C.

positions specifically because he was especially well qualified

to assume the new responsibilities that the company had in mind

for the General Delegate and President of EDFINA. In short,

the pay differential between Nadal and Gaujacq was justified

based on “experience, training or ability of an employee [which]

may justify salary differentials, provided they are not based

upon sex.” Aetna, 616 F.2d at 725. No reasonable jury could

find otherwise.

14

C. Gender Discrimination

We also affirm the District Court’s grant of summary

judgment on appellant’s gender discrimination claims.

Appellant argues that a genuine issue of material fact exists as

to whether EDF’s asserted nondiscriminatory reasons for its

actions are pretextual, and that the District Court failed to

analyze her aiding and abetting claim against Nadal under the

DCHRA. Neither argument has merit.

Title VII prohibits discrimination by an employer against

“any individual” based on that individual’s “race, color, religion,

sex, or national origin.” 42 U.S.C. § 2000e-2(a). The DCHRA

contains a similar provision. See D.C. CODE § 2-1402.11(a).

The District Court found that Title VII applies to foreign

companies operating in the United States and protects aliens

working in the United States as well as U.S. citizens. See

Gaujacq, 572 F. Supp. 2d at 86-87. Appellees do not dispute

this.

Title VII and DCHRA discrimination claims are assessed

pursuant to the three-step framework set forth in McDonnell

Douglas Corp. v. Green. See 411 U.S. 792, 802-03, 807 (1973);

see also Howard Univ. v. Green, 652 A.2d 41, 45 & n.3 (D.C.

1994) (applying McDonnell Douglas framework to DCHRA

cases). In Brady v. Office of Sergeant at Arms, 520 F.3d 490

(D.C. Cir. 2008), we made it clear that when “an employer has

asserted a legitimate, non-discriminatory reason” for an alleged

adverse action, the District Court need only “resolve one central

question” when considering a motion for summary judgment:

“Has the employee produced sufficient evidence for a

reasonable jury to find that the employer’s asserted non-

discriminatory reason was not the actual reason and that the

employer intentionally discriminated against the employee on

the basis of race, color, religion, sex, or national origin?” Id. at

494. In this case, EDF proffered legitimate, nondiscriminatory

reasons for Gaujacq’s claimed adverse actions, and the District

15

Court properly analyzed Gaujacq’s discrimination claims under

the Brady framework. See Gaujacq, 572 F. Supp. 2d at 87.

On the record before us, no reasonable jury could find that

Gaujacq was a victim of discrimination based on her gender.

She was replaced in the positions of General Delegate and

President of EDFINA in the normal course of work, as her

contract expired. And she was treated no differently than the

persons who had preceded her in the positions of General

Delegate and President of EDFINA. Indeed, appellant was

favored when EDF assigned her to serve as a Vice President of

EDFINA in an effort to accommodate her desire to stay in

Washington, D.C. The company reassigned her to a high level

position in France only after her obstructionist behavior made it

clear that she would not work cooperatively with Nadal. And

she was terminated only after she refused her new assignment in

France. None of these employment actions resulted from

discrimination based on gender. And because EDF did not

discriminate against Gaujacq, it is clear that Nadal did not aid

and abet any unlawful discrimination. See Halberstam v. Welch,

705 F.2d 472, 477 (D.C. Cir. 1983).

D. Retaliation

Appellant next argues that the District Court erred in

rejecting her claims of retaliation under Title VII and the

DCHRA. She points to three instances in which she suffered

materially adverse actions that resulted in unlawful retaliation:

(1) when EDF officials allowed her 2000 Expatriate Contact to

expire at the end of July 2004 and reassigned her to a new

position in France; (2) when she was terminated on January 6,

2005 after she refused to accept her new assignment in France;

and (3) when Creuzet told her on July 23, 2004 that “[y]our

career is dead in EDF if you file a claim.” Appellant’s Br. at 35.

“Title VII’s antiretaliation provision forbids employer

actions that ‘discriminate against’ an employee . . . because he

16

has ‘opposed’ a practice that Title VII forbids or has ‘made a

charge, testified, assisted, or participated in’ a Title VII

‘investigation, proceeding, or hearing.’” Burlington, 548 U.S.

at 59 (quoting 42 U.S.C. § 2000e-3(a)). The DCHRA also

contains an anti-retaliation provision. See D.C. CODE § 2-

1402.61. As we recently explained in Jones v. Bernanke, 557

F.3d 670 (D.C. Cir. 2009),

retaliation claims based on circumstantial evidence . . .

trigger the familiar burden-shifting framework of

McDonnell Douglas. Under that framework, a plaintiff

must first establish a prima facie case of retaliation by

showing (1) that he engaged in statutorily protected

activity; (2) that he suffered a materially adverse action by

his employer; and (3) that a causal link connects the two.

If the plaintiff establishes a prima facie case, the burden

shifts to the employer to produce a legitimate,

nondiscriminatory reason for its actions. If the employer

does so, the burden-shifting framework disappears, and a

court reviewing summary judgment looks to whether a

reasonable jury could infer retaliation from all the evidence,

which includes not only the prima facie case but also the

evidence the plaintiff offers to attack the employer’s

proffered explanation for its action and other evidence of

retaliation.

Id. at 677 (citations and quotations omitted); see also Carpenter

v. Fed. Nat’l Mortgage Ass’n, 174 F.3d 231, 235-36 n.3 (D.C.

Cir. 1999) (applying McDonnell Douglas framework to DCHRA

retaliation claims). The Supreme Court has distinguished Title

VII’s anti-retaliation provision from its substantive anti-

discrimination provision, holding that a “materially adverse”

action for purposes of a retaliation claim is one that “could well

dissuade a reasonable worker from making or supporting a

charge of discrimination.” Burlington, 548 U.S. at 57; see also

Steele v. Schafer, 535 F.3d 689, 696 (D.C. Cir. 2008). In other

17

words, the proscription against retaliation sweeps more broadly

than the proscription against gender discrimination. See

Burlington, 548 U.S. at 66-67.

Applying these tests, we have no trouble in disposing of

appellant’s first two claims of alleged retaliation. The

undisputed evidence in the record indicates that EDF officials

elected to transfer Gaujacq to France when her contract expired,

in part because she effectively refused to cooperate with Nadal,

under whom she would have been assigned to work had she

remained in Washington, D.C. Gaujacq’s contract expired at the

end of July 2004 and she had no right to remain in Washington,

D.C. EDF elected to utilize Gaujacq’s nuclear power expertise

on a project in France. Gaujacq conceded that the project was

“important for the company” but “[n]ot really” important “[f]or

me.” Gaujacq Dep. at 428, 2 J.A. 919; see also Gaujacq, 572 F.

Supp. 2d at 90.

Given these facts, no reasonable jury could find that EDF

officials retaliated against Gaujacq when they elected to assign

her to a new and important position in France after her contract

expired. Likewise, EDF surely did not retaliate against Gaujacq

when they terminated her after she refused to work in France.

In short, we agree with the District Court that EDF proffered

legitimate, nondiscriminatory reasons for Gaujacq’s

reassignment and termination, and that Gaujacq offered nothing

to rebut this evidence to suggest that the company intended to

retaliate against her.

Appellant’s third claim of retaliation – Creuzet’s statement

that “[y]our career is dead in EDF if you file the claim” – also

fails. A threatening verbal statement, standing alone, might well

constitute a materially adverse action. However, in assessing

such a claim, Burlington emphasizes that “[c]ontext matters”

and that “the significance of any given act of retaliation will

often depend upon the particular circumstances.” Burlington,

548 U.S. at 69. Therefore, a statement that literally appears to

18

be threatening is not necessarily a materially adverse action. An

employer’s words and other actions must be considered in

context to determine whether they would “dissuade a reasonable

worker” from filing a claim and thus result in actionable

retaliation. See id. at 57.

Gaujacq contends that Creuzet’s statement was a materially

adverse action sufficient to make out a prima facie case of

retaliation. We disagree. In the context of this case, a

reasonable worker in Gaujacq’s position would not have taken

Creuzet’s brief, fleeting, and unadorned verbal statement as an

act or threat of retaliation. Both before and after Creuzet’s

statement, top EDF officials went out of their way to

accommodate Gaujacq’s desire to stay in the United States,

despite her increasing insubordination and refusal to consider

any future employment decision that did not meet her precise

demands. Neither her contract nor company practice gave

Gaujacq any right to remain in Washington, D.C. once she

completed her term as General Delegate and EDFINA President.

Yet, EDF officials indulged her at every turn – first by extending

her contract by a year, then by negotiating with her to find a way

to allow her stay in Washington, D.C., and finally by creating a

Vice President’s position for her. But nothing that the company

did satisfied Gaujacq and she persisted in disparaging Nadal’s

authority and refusing to cooperate with him.

Creuzet’s disputed statement to Gaujacq came at a time in

late July when Gaujacq was telephoning company officials to

complain again about her situation with Nadal. Creuzet first

told her that he did “not have time to discuss the differences of

views between managers” and then stated, “[y]our career is dead

in EDF if you file the claim.” In this context – given all that the

company had done for her – Creuzet’s statement appears less a

threat than an expression of exasperation over Gaujacq’s

ongoing antics. After all, it was Creuzet who spent so much

time earlier in the year negotiating with Gaujacq in an effort to

19

find a way for her to remain in Washington, D.C. No reasonable

employee who received as much accommodation as did Gaujacq

could construe Creuzet’s statement as an unlawful retaliatory

threat. Therefore, in the “particular circumstances” of this case,

we hold that the verbal statement made by Creuzet did not

constitute a materially adverse action. Burlington, 548 U.S. at

69.

Because we uphold the District Court summary judgment

in favor of EDF on the retaliation claim, we likewise affirm the

summary judgment in favor of Nadal on the related aiding and

abetting claim. See Halberstam, 705 F.2d at 477.

E. Common Law Claims

Gaujacq also argues that the District Court erred in

dismissing her several common law claims: the company’s

alleged breach of (1) the 2000 Expatriate Contract; (2) a

purported 2004 expatriate contract; and (3) the duty of good

faith and fair dealing; as well as (4) Nadal’s alleged tortious

interference with contractual relations and business expectancy.

We affirm the dismissal of all of Gaujacq’s claims except one,

which we remand to the District Court for further consideration.

1. Breach of 2000 Expatriate Contract

Gaujacq claims two breaches of her 2000 Expatriate

contract. First, she argues that EDF failed to reimburse her for

business expenses that she incurred and for which she was

supposed to be compensated under the agreement. Second,

Gaujacq argues that EDF failed to conduct an interview with her

at least six months prior to her return to France, as required by

EDF’s “Guide to EDF Employees Working Abroad” (“Guide”),

which was incorporated by reference into the 2000 Expatriate

Contract.

We easily dispose of Gaujacq’s second claim. The Guide

provides that in order to “encourage the promotion of

20

international mobility as part of career development,” it is

“appropriate” for management to conduct an “evaluative

discussion” at least six months before the expatriate returns to

France. Management Guide for Agents Working Abroad,

reprinted in 4 J.A. 1639. Even if this provision creates a

contractual obligation on the part of EDF’s management – a

doubtful claim at best – EDF satisfied its obligations. In the

early part of 2004, Gaujacq was in constant consultation with

top officials at EDF, several of whom discussed career options

with her and then labored to find a way to accommodate her

desire to stay in the United States.

The District Court failed to analyze Gaujacq’s first claim

for breach of contract, i.e., the company’s alleged failure to

reimburse her for expenses. Because this claim was raised

below and preserved on appeal, we remand to allow the District

Court to address this issue in the first instance. See

Saksenasingh v. Sec’y of Educ., 126 F.3d 347, 351 (D.C. Cir.

1997) (“If the District Court had original jurisdiction, but

dismissed for non-jurisdictional reasons, then it [may] maintain

supplemental jurisdiction at its discretion.”).

2. Breach of 2004 Expatriate Contract

Gaujacq also claims that EDF breached a purported “2004

Expatriate Contract,” arguing that a contract formed after she

emailed Creuzet details of her new mission in the United States

and Creuzet accepted the proposal on behalf of EDF on March

29, 2004. We reject this claim, because the facts do not support

it.

Assuming, as appellant argues, that District of Columbia

law applies, see Appellant’s Br. at 44, we agree with the District

Court that Gaujacq never reached a second contract with EDF to

continue working in the United States. See Gaujacq, 572 F.

Supp. 2d at 93. Under District of Columbia law, a valid and

enforceable contract requires (1) the intention of the parties to

21

be bound, and (2) agreement as to all material terms. Steven R.

Perles, P.C. v. Kagy, 473 F.3d 1244, 1249 (D.C. Cir. 2007).

During his negotiations with appellant, Creuzet made it clear

that he would forward Gaujacq’s proposal to the head of human

resources to get his comments. However, he never reached an

agreement with Gaujacq on behalf of EDF. Rather, Gaujacq and

Creuzet continued to negotiate over possible employment

arrangements. The undisputed evidence plainly shows that EDF

did not intend to be bound to Gaujacq’s proposed terms.

Therefore, no enforceable contract existed and summary

judgment on this claim is proper.

3. Breach of Duty of Good Faith and Fair Dealing

Appellant also asserts that the company breached its duty of

good faith and fair dealing with respect to the 2000 Expatriate

Contract and the purported 2004 agreement. As noted above,

EDF and Gaujacq never concluded a second expatriate contract

in 2004. However, assuming, as appellant argues, that District

of Columbia law applies, the 2000 Expatriate Contract

“contain[s] an implied duty of good faith and fair dealing, which

means that neither party shall do anything which will have the

effect of destroying or injuring the right of the other party to

receive the fruits of the contract.” Allworth v. Howard Univ.,

890 A.2d 194, 201 (D.C. 2006) (internal quotation marks and

citations omitted). EDF does not dispute this. Rather, EDF

argues that it did not engage in “‘bad faith’” by “‘violat[ing]

standards of decency, fairness or reasonableness,’” and that it

did not engage in any arbitrary or capricious action towards

Gaujacq. See id. at 201-02 (quoting Restatement (Second) of

Contracts § 205 cmt. a). We agree. As the District Court

explained, Gaujacq’s contract “came to its natural and agreed-

upon conclusion in July 2004,” and EDF never agreed to extend

the old contract or execute a new one. See Gaujacq, 572 F.

Supp. 2d at 93.

22

4. Tortious Interference With Contract

Lastly, appellant contends that Nadal tortiously interfered

with the 2000 Expatriate Contract and the purported 2004

contract, or with a commercially reasonable business expectancy

with respect to the proposed 2004 contract. These claims fail.

A defendant can avoid liability for tortious interference with

contract and with business relations if the defendant can

establish that his conduct was legally justified or privileged.

Sorrells v. Garfinckel’s, Brooks Bros., Miller & Rhoads Inc.,

565 A.2d 285, 289-90 (D.C. 1989); see also McManus v. MCI

Commc’ns Corp., A.2d 949, 958 (D.C. 2000). District of

Columbia “law affords to a supervisor . . . a qualified privilege

to act properly and justifiably toward a fellow employee and that

employee’s true employers – those who have the power to hire

and fire.” Sorrells, 565 A.2d at 291. This privilege does not

apply where “the supervisor acts with malice for the purpose of

causing another employee’s contract to be terminated.” Id.

Gaujacq’s claims are meritless, because she points to no

evidence showing that Nadal’s motivation for his actions was

other than legally justified. Gaujacq’s insubordinate and

obstructionist conduct made it virtually impossible for Nadal to

work with her. He committed no legal wrong when he

expressed his dismay over the situation.

F. Gaujacq’s Procedural Motions

Appellant lastly takes issue with the District Court’s

implicit denials of her motions to supplement her opposition to

defendants’ motions for summary judgment and to compel

discovery. We think it is plain that the District Court meant to

deny appellant’s motions when it granted appellees’ motions for

summary judgment and dismissed the case. The District Court

did not abuse its discretion in denying appellant’s motions.

This court is “especially reluctant to interfere with district

court decisions regarding their own day-to-day operations,”

23

particularly the District Court’s “broad discretion in structuring

discovery.” Hussain v. Nicholson, 435 F.3d 359, 363 (D.C. Cir.

2006) (internal quotation marks and citation omitted).

Gaujacq’s motions claimed that reopening discovery would have

allowed her to defeat EDF’s claims that Nadal was more

qualified than Gaujacq and that he possessed a superior

performance record, because his tenure as CEO of EDENOR

“resulted in criminal prosecutions and a billion dollar loss to

EDF.” See Mem. in Support of Pl.’s Mot. to Compel and For

Sanctions at 2-3 (Apr. 23, 2008), 7 J.A. 3375-76; see also Mot.

and Mem. for Leave to Supplement Pl.’s Opp’n to Defs.’ Mot.

for Summ. J. at 4, 7 J.A. 3230. However, appellant’s

submissions make clear that the Argentinian investigation

showed no cause for prosecuting Nadal, who was not indicted.

See Mot. and Mem. for Leave to Supplement Pl.’s Opp’n to

Defs.’ Mot. for Summ. J. Ex. 12, reprinted in 7 J.A. 3340; Defs.’

Opp’n to Pl.’s Mot. for Leave to Supplement Ex. 1, reprinted in

7 J.A. 3370 (translated copy of plaintiff’s Exhibit 12).

Moreover, indictments brought against other EDENOR

employees were ultimately dismissed. See EDENOR Form 6-K

at 77 (Aug. 2007), Mot. and Mem. for Leave to Supplement

Pl.’s Opp’n to Defs.’ Mot. for Summ. J. Ex. 11, reprinted in 7

J.A. 3309. The District Court did not err in denying appellant’s

motions.

III. CONCLUSION

For the foregoing reasons, we remand this case to the

District Court to consider Gaujacq’s breach of contract claim

pertaining to the reimbursement of business expenses. We

affirm the judgment of the District Court as to all other claims.