Broderick, Catherine v. Donaldson, William

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 2, 2005 Decided February 10, 2006

No. 04-5404

CATHERINE A. BRODERICK,

APPELLANT

v.

WILLIAM B. DONALDSON, CHAIRMAN, SECURITIES AND

EXCHANGE COMMISSION,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 02cv00159)

Richard L. Swick argued the cause for appellant. With him

on the briefs was Ellen K. Renaud.

Peter D. Blumberg, Assistant U.S. Attorney, argued the

cause for appellee. With him on the brief were Kenneth L.

Wainstein, U.S. Attorney, and R. Craig Lawrence, Assistant

U.S. Attorney. Michael J. Ryan, Assistant U.S. Attorney,

entered an appearance.

Before: HENDERSON, ROGERS and BROWN, Circuit Judges.

Opinion for the Court filed by Circuit Judge BROWN.

2

BROWN, Circuit Judge: Catherine Broderick filed suit

against her employer, the Securities and Exchange Commission

(SEC), alleging retaliation under Title VII of the Civil Rights

Act of 1964 as well as violations of a 1988 court order issued in

her previous sexual harassment suit against the SEC. The district

court granted summary judgment against Broderick on the

retaliation claim and declined to hold the SEC in contempt for

the alleged violations of the order. Broderick now appeals both

decisions.

We find the district court did not err in granting summary

judgment to the SEC, as Broderick has not stated a prima facie

case of retaliation. Additionally, we find the district court did

not abuse its discretion in deciding not to hold the SEC in

contempt of the 1988 order. We therefore affirm.

I

Catherine Broderick won a sexual harassment suit against

the SEC in 1988. Broderick v. Ruder, 685 F. Supp. 1269, 1280-

81 (D.D.C. 1988). After her victory, the district court entered an

order entitling Broderick to a “promotion to GM-15,” a “title

commensurate with GM-15 status,” and a

transfer to a position in the Division of Enforcement or the

Office of the General Counsel at the agreed-upon GM-15

level, with appropriate work assignments, on-the-job

training, evaluation standards, and increased responsibilities

over time as she acquires the training and experience and as

she demonstrates the capabilities to assume such responsi-

bilities.

Broderick v. Ruder, No. 86-1834, 1988 WL 66210, at *1

(D.D.C. June 16, 1988). The order also specified that the SEC

would provide two sets of performance standards, one detailing

3

“the initial duties and responsibilities assigned to [Broderick] in

light of her current training and experience,” and the other

setting forth “the full duties and responsibilities she will be

expected to assume after she acquires the training and experi-

ence and demonstrates the proficiency necessary to assume

those duties and responsibilities.” Id. at *1 n.1. Consistent with

this order, Broderick (who had previously been employed as an

attorney at the GS-13 level) was given a GM-15 position in the

Appellate Group of the Office of the General Counsel, with the

newly-created job title “counsel to the assistant general coun-

sel.” Broderick has remained in that position since 1988.

Broderick now claims she “did not get a fresh start in the

Appellate Group,” Appellant’s Br. at 11, because “a lot of

people” from that office attended her sexual harassment trial,

and some were “associate[s]” of attorneys in her former office,

id. at 11-12. Jacob Stillman, head of the Appellate Group,

allegedly said at some point that Broderick was “here because

of the lawsuit. And, you know, we didn’t want her here but she’s

here. And she gets paid at this level and she can’t do the work.”

Despite her unique title and higher pay grade, Broderick’s

duties, preparing first drafts of briefs, were essentially equiva-

lent to those of a GS-13 staff attorney. A staff attorney’s briefs

are typically reviewed by an assistant general counsel or a senior

litigation counsel, and then by either the solicitor (Stillman) or

his deputy. Broderick’s duties were also similar to those of a

special counsel (a GS-14 position), except that a special counsel

may at times supervise another attorney’s work and may have

his work reviewed directly by the solicitor or the deputy

solicitor.

Broderick’s performance evaluations for the years 1995-

2000 all rated her as “outstanding” overall, the highest possible

rating. In all six of those years, she was rated as “outstanding”

in four of five categories: research, oral communications,

4

writing, and compliance with administrative requirements. In the

fifth category, analysis, she received an “exceeds fully success-

ful” rating each year, the second-highest possible rating. As of

2000, Broderick was still being evaluated according to the initial

set of performance standards that were drafted in response to the

1988 order.

At least four of Broderick’s supervisors have stated that

they do not think she should be in a supervisory position: Jacob

Stillman (“I don’t think that given those concerns [about her

analysis] that she should be supervising people.”), Katharine

Gresham (“I doubt [Broderick could handle a supervisory role]

. . . [b]ecause she still needs to be supervised.”), Mark Penning-

ton (“[T]o the extent that being a senior litigation counsel

required [a] supervisory role, . . . I think [Broderick’s] legal

analysis wouldn’t be strong enough.”), and Randy Quinn (“I

guess I would not feel completely comfortable” with Broderick

supervising another attorney.). In 1996 and 1998, Broderick

applied for vacant assistant general counsel positions but was

not selected. On June 12, 1998, Broderick sent a memo to her

supervisors in the Appellate Group and to the Office of Equal

Employment Opportunity, complaining that she had been with

the Appellate Group for ten years without being promoted. She

requested “a change in job title and position commensurate with

[her] seniority, experience, and outstanding performance

appraisals.” She also requested that her “career ladder be

clarified, since it [was] unclear to [her] how [she was] expected

to move into the supervisory ranks when the entry level is at the

GS-14 level.”

In December 1999, two senior litigation counsel vacancies

in the Appellate Group were announced; Broderick submitted an

application but was not selected. Hope Augustini and Rada

Potts, two other Appellate Group attorneys, were chosen for the

positions on February 8, 2000. Broderick was informed of the

5

decision that same day, and she contacted an equal employment

opportunity (EEO) counselor in order to complain. On June 8,

2000, Broderick, Jacob Stillman, and Katharine Gresham

participated in a mediation session connected with Broderick’s

EEO complaint.

Broderick allegedly became “angry” and “unfriendly”

toward Gresham after Gresham became aware of Broderick’s

EEO complaint. On July 13, 2000, Stillman sent Broderick a

memo claiming that when Gresham tried to discuss the situation

with Broderick, Broderick “became hostile, raised [her] voice,

and made highly inappropriate comments about Katharine’s

mother and suggestions to Katharine that she seek psychological

assistance.” The memo cautioned Broderick that her “recent

course of conduct toward Katharine Gresham [was] unaccept-

able and [was] inconsistent with the requirements of [her]

performance standards.” Broderick disputes this account,

claiming that she merely responded to Gresham’s request that

they be friends. The memo was not placed in Broderick’s

personnel file, but the incident was subsequently mentioned in

her 2001 evaluation.

II

Broderick filed suit against the SEC on January 29, 2002,

claiming retaliation in violation of Title VII of the Civil Rights

Act of 1964, as well as violations of the 1988 court order. She

requested a finding of civil contempt against the SEC for

violating the 1988 order, with compensatory damages of

$300,000 plus interest, as well as additional monetary penalties

until the SEC complied with the order. Broderick also requested

a retroactive assignment to a management position with backpay

and benefits, retroactive awards and bonuses, and corrections to

her personnel file.

6

The SEC moved for summary judgment on Broderick’s

retaliation claim; the district court granted that motion on

September 20, 2004. Broderick v. Donaldson, 338 F. Supp. 2d

30, 48 (D.D.C. 2004). The court held that Broderick had failed

to exhaust her administrative remedies with respect to any

allegedly adverse actions that occurred before December 24,

1999. Id. at 39-40. Next, the court held Broderick had failed to

demonstrate a prima facie case of retaliation, because only the

previous lawsuit qualified as a protected activity, only the

denials of her applications for supervisory positions constituted

adverse actions, and Broderick had not shown a causal connec-

tion between the first two elements. Id. at 40-44. Alternatively,

the court found that even if Broderick had stated a prima facie

case of retaliation, the SEC had proffered non-discriminatory

justifications for its actions, which Broderick had not rebutted.

Id. at 44-46.

The court also declined to hold the SEC in contempt for

alleged violations of the 1988 court order. Id. at 46-47. Finding

no proof of discriminatory motives, the court held that it could

not review the SEC’s determination that Broderick had not

progressed professionally to the point where she should be given

additional responsibilities. Id. at 46. Even assuming both that

Broderick had made the requisite professional progress and that

the court (rather than the SEC) should make the determination

of such progress, the court found the language of the 1988 order

too “subjective and imprecise” for a finding of civil contempt.

Id. at 47. Finally, the court determined “the SEC’s assessment

of Broderick, as not yet possessing the requisite skills . . . [was]

at least evenhanded and fair, and probably substantively cor-

rect.” Id.

7

III

Federal Rule of Civil Procedure 56(c) provides that

summary judgment is appropriate “if the pleadings, depositions,

answers to interrogatories, and admissions on file, together with

the affidavits, if any, show that there is no genuine issue as to

any material fact and that the moving party is entitled to a

judgment as a matter of law.” “Rule 56(c) mandates the entry of

summary judgment . . . against a party who fails to make a

showing sufficient to establish the existence of an element

essential to that party’s case, and on which that party will bear

the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S.

317, 322 (1986). We review the district court’s grant of sum-

mary judgment de novo, and we will affirm only if, viewing the

evidence in the light most favorable to Broderick, we find that

no reasonable jury could find in her favor. See Murray v.

Gilmore, 406 F.3d 708, 713 (D.C. Cir. 2005).

“All personnel actions affecting employees . . . in executive

agencies . . . shall be made free from any discrimination based

on race, color, religion, sex, or national origin.” 42 U.S.C.

§ 2000e-16(a). Retaliation against an employee who alleges

such discrimination is prohibited by 42 U.S.C. § 2000e-3(a),

which states:

It shall be an unlawful employment practice for an em-

ployer to discriminate against any of his employees . . .

because he has opposed any practice made an unlawful

employment practice by this subchapter, or because he has

made a charge, testified, assisted, or participated in any

manner in an investigation, proceeding, or hearing under

this subchapter.

A plaintiff claiming unlawful retaliation must prove her case

under the burden-shifting framework established by McDonnell

8

Douglas Corp. v. Green, 411 U.S. 792 (1973). See Smith v.

District of Columbia, 430 F.3d 450, 455 (D.C. Cir. 2005). Under

this framework,

the plaintiff must establish the three elements of a prima

facie case of retaliation: first, that she engaged in protected

activity; second, that she was subjected to adverse action by

the employer; and third, that there existed a causal link

between the adverse action and the protected activity. Such

a showing raises a rebuttable presumption of unlawful

discrimination and shifts to the defendant the burden to

rebut the presumption by asserting a legitimate,

non-discriminatory reason for its actions. If the defendant

does so, the McDonnell Douglas framework disappears, and

we must decide whether a reasonable jury could infer

intentional discrimination from the plaintiff’s prima facie

case and any other evidence the plaintiff offers to show that

the actions were discriminatory or that the non-discrimina-

tory justification was pretextual.

Id. (internal quotation marks and citations omitted).

We first examine whether Broderick engaged in activity

protected by Title VII. Broderick’s previous sexual harassment

lawsuit clearly qualifies, as she “made a charge,” 42 U.S.C.

§ 2000e-3(a), of unlawful discrimination based on sex. See

Singletary v. District of Columbia, 351 F.3d 519, 525 (D.C. Cir.

2003); McKenzie v. Ill. Dep’t of Transp., 92 F.3d 473, 483 n.8

(7th Cir. 1996). Less clear is whether the June 1998 memo that

Broderick sent to her supervisors and the EEO office also

qualifies as protected activity. Not every complaint garners its

author protection under Title VII. See Pope v. ESA Servs., Inc.,

406 F.3d 1001, 1010 (8th Cir. 2005) (stating that commenting

about absence of black employees, without alleging discrimina-

tion, was insufficient to qualify as protected activity); Sitar v.

9

Ind. Dep’t of Transp., 344 F.3d 720, 727-28 (7th Cir. 2003)

(stating that complaining about being “picked on,” without

mentioning discrimination or otherwise indicating that gender

was an issue, does not constitute protected activity, even if the

employee honestly believes she is the subject of sex discrimina-

tion); Galdieri-Ambrosini v. Nat’l Realty & Dev. Corp., 136

F.3d 276 (2d Cir. 1998). While no “magic words” are required,

the complaint must in some way allege unlawful discrimination,

not just frustrated ambition. Broderick did not allege in her

memo that she was currently being discriminated against or that

she was being retaliated against for her previous lawsuit, stating

only that she found “being treated as a staff attorney after

nineteen years” working for the SEC to be “embar[r]assing,

humiliating and downright insulting.” At the same time,

Broderick did send a copy of her memo to an EEO official, and

the memo did incidentally mention her previous lawsuit.1 Yet

regardless of whether Broderick engaged in only one protected

activity (the lawsuit) or two (the lawsuit and the June 1998

memo), she has established the first element of a prima facie

case. As we discuss next, however, she has not satisfied the

second element. In the absence of a finding that the plaintiff has

suffered adverse action, a retaliation claim fails as a matter of

law. See Berger v. Iron Workers Reinforced Rodmen Local 201,

843 F.2d 1395, 1424 (D.C. Cir. 1988).

To challenge an adverse action, an employee of a federal

agency must “initiate contact with [an EEO] Counselor within

45 days of the date of the matter alleged to be discriminatory, or,

in the case of personnel action, within 45 days of the effective

date of the action.” 29 C.F.R. § 1614.105(a)(1). As her counsel

1

Broderick’s June 1998 memo stated that a promotion would not

“entail additional cost” to the SEC, because she was “already being

paid at a GS-15 level by virtue of [her] lawsuit against the

Commission.”

10

conceded at oral argument, Broderick failed to exhaust her

administrative remedies in a timely manner with respect to her

first two non-selections for promotions, Recording of Oral Arg.

at 17:21-17:34; those incidents, in 1996 and 1998, occurred

several years before she contacted an EEO counselor. In her

briefs, Broderick argued that her 2000 non-selection for one of

the senior litigation counsel positions qualified as an adverse

action; this argument appeared to be a complaint that she had

been denied advancement in the form of additional duties, i.e.,

supervising other attorneys. At oral argument, however, her

counsel conceded that this lawsuit “boils down to” Broderick

wanting “to have her work reviewed by the top people” in the

office. Id. at 8:04-8:20, 10:17-10:30. Rather than stemming from

one particular non-selection, this complaint could, in her

counsel’s words, be remedied “with the stroke of the pen if [her

supervisors] want[ed] to do that,” as they could alter her position

description to allow her to submit her briefs to a more senior

attorney. Id. at 42:20-42:32. Her counsel also conceded the

senior litigation counsel position for which Broderick applied

may or may not have entailed supervisory duties, depending on

how cases would be assigned. Id. at 17:37-17:45, 41:34-41:48.

In essence, these concessions clarify that Broderick is

pointing to the denial of reduced supervision, rather than the

2000 non-selection, as an adverse action. Yet allowing

Broderick to submit her briefs to a different supervisor would

entail changes in her supervisors’ duties, not her own. Similarly,

Broderick is not alleging that she was denied a higher salary, as

she is already paid at the GS-15 level, just as she would have

been had she received the position for which she applied. Her

claimed injury is not the denial of a promotion—new duties or

an increase in pay—but of a new supervisor.

Broderick cannot use this limited claim to satisfy the second

element of her prima facie case. “An ‘adverse employment

11

action’ within the meaning of McDonnell Douglas is ‘a signifi-

cant change in employment status, such as hiring, firing, failing

to promote, reassignment with significantly different responsi-

bilities, or a decision causing significant change in benefits.’”

Taylor v. Small, 350 F.3d 1286, 1293 (D.C. Cir. 2003) (quoting

Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998)).

“[N]ot everything that makes an employee unhappy is an

actionable adverse action. Minor and even trivial employment

actions that an irritable, chip-on-the-shoulder employee did not

like would otherwise form the basis of a discrimination suit.”

Russell v. Principi, 257 F.3d 815, 818 (D.C. Cir. 2001) (internal

quotation marks omitted). While “being ‘aggrieved’ is necessary

to state a claim for retaliation, . . . it is not sufficient to demon-

strate that a particular employment action was adverse.”

Holcomb v. Powell, No. 04-5216, slip op. at 20 n.4 (D.C. Cir.

Jan. 10, 2006) (construing 42 U.S.C. § 2000e-16(c)). The

employee must “experience[] materially adverse consequences

affecting the terms, conditions, or privileges of employment or

future employment opportunities such that a reasonable trier of

fact could find objectively tangible harm.” Forkkio v. Powell,

306 F.3d 1127, 1131 (D.C. Cir. 2002) (citing Brown v. Brody,

199 F.3d 446, 457 (D.C. Cir. 1999)). “Mere idiosyncracies of

personal preference are not sufficient to state an injury.” Brown,

199 F.3d at 457. Refusing to allow Broderick to submit her

briefs directly to a top supervisor did not result in “significantly

different responsibilities,” Taylor, 350 F.3d at 1293, or “objec-

tively tangible harm,” Forkkio, 306 F.3d at 1131, and therefore

12

cannot qualify as an adverse action.2 Broderick has thus failed

to state a prima facie case of retaliation.3

IV

“The power to punish for contempts is inherent in all courts;

its existence is essential to . . . the enforcement of the judgments,

orders, and writs of the courts, and consequently to the due

administration of justice.” Ex parte Robinson, 86 U.S. (19 Wall.)

505, 510 (1874). “The moment the courts of the United States

were called into existence and invested with jurisdiction over

any subject, they became possessed of this power.” Id. “[C]ivil

2

Similarly, the disciplinary memo that Stillman sent to Broderick

in July 2000 does not qualify as an adverse action, as it did not affect

her grade, salary, duties, or responsibilities. See Brown, 199 F.3d at

458.

3

If Broderick had not conceded that she was merely challenging

the chain of review for her own briefs rather than her lack of an

opportunity to supervise others, her 2000 non-selection might have

qualified as an adverse action. However, even if Broderick had not

abandoned that position at oral argument, and assuming arguendo that

Broderick established the third element of the prima facie case (a

causal connection between her protected activity and the adverse

action), her retaliation claim would still have failed. The SEC put

forward a legitimate, non-discriminatory justification for not giving

her greater responsibility: her supervisors did not feel that she had

demonstrated the abilities needed to supervise other attorneys’ work,

which could have been required had she been selected for the senior

litigation counsel position. Broderick failed to present sufficient

evidence on which a reasonable jury could decide that this proffered

justification was mere pretext and that the SEC’s actual motivation

was discriminatory. Broderick did not demonstrate that she was

qualified for such a position, let alone that she was more qualified than

the candidates who were selected. See, e.g., Aka v. Wash. Hosp. Ctr.,

156 F.3d 1284, 1294-95 (D.C. Cir. 1998) (en banc).

13

contempt will lie only if the putative contemnor has violated an

order that is clear and unambiguous, and the violation must be

proved by clear and convincing evidence.” Armstrong v.

Executive Office of the President, 1 F.3d 1274, 1289 (D.C. Cir.

1993) (citation and internal quotation marks omitted). “On

appeal, the petitioner must prove that the trial judge abused his

discretion in refusing to order civil contempt.” Wash.-Balt.

Newspaper Guild, Local 35 v. Wash. Post Co., 626 F.2d 1029,

1031 (D.C. Cir. 1980).

The district court did not abuse its discretion in refusing to

hold the SEC in contempt. The 1988 order was silent as to the

standard for determining when Broderick would be considered

ready for additional responsibilities, let alone what the nature of

those responsibilities would be. Of necessity, the SEC had to

rely on its own assessments of Broderick’s progress in determin-

ing whether to give her additional duties. The district court

found the SEC’s assessments to be “at least evenhanded and

fair, and probably substantively correct,” based on the evidence

in the record. Broderick, 338 F. Supp. 2d at 47. Both prongs of

the Armstrong standard therefore militate against a finding of

contempt: the 1988 order was not “clear and unambiguous” as

to what was required, and Broderick failed to provide clear and

convincing evidence that the SEC did not give her responsibili-

ties to which she was entitled.4 Under these circumstances, the

district court would have abused its discretion if it had held the

SEC in contempt. As it stands, the district court did not err in

ruling against Broderick in this regard.

4

Broderick points to emails and notes from other attorneys in the

Appellate Group in which her work is praised. However, evidence that

Broderick has performed her current job admirably on at least some

occasions falls far short of clear and convincing evidence that she is

entitled to additional duties.

14

V

For the above reasons, we affirm the judgments of the

district court.

So ordered.