Janet Allen v. Jeh Johnson

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 25, 2014 Decided July 24, 2015

No. 13-5170

JANET E. ALLEN,

APPELLANT

v.

JEH CHARLES JOHNSON, SECRETARY OF HOMELAND SECURITY,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 1:09-cv-02228)

Ellen K. Renaud argued the cause for appellant. With her

on the briefs was David H. Shapiro.

Jeremy S. Simon, Assistant U.S. Attorney, argued the

cause for appellee. With him on the brief were Ronald C.

Machen Jr., U.S. Attorney, and R. Craig Lawrence, Assistant

U.S. Attorney.

Before: ROGERS, KAVANAUGH and PILLARD, Circuit

Judges.

Opinion for the Court filed by Circuit Judge PILLARD.

2

PILLARD, Circuit Judge: Plaintiff Janet Allen settled a

pair of employment discrimination claims against the

Department of Homeland Security, but soon began to suspect

that her new supervisor, Kathy Hill, was retaliating against

her for having asserted her rights. Allen’s next performance

rating was lower than she thought it should be, and she was

not invited to meetings in which she thought she should be

included as part of her job overseeing the internal financial

control systems at U.S. Immigration and Customs

Enforcement (ICE), an agency within the Department of

Homeland Security. Allen filed this suit claiming Hill

retaliated against her for the earlier discrimination complaints.

The Department moved for summary judgment, asserting that

Hill’s explanations of her actions were legitimate and non-

retaliatory. Hill justified the performance ratings on the

ground that Allen, a managerial employee, failed adequately

to supervise ICE’s specialized satellite offices and external

contractors, leading to delays on two projects and a complaint

from one of the satellite offices. Hill also attested that Allen

was never excluded from meetings at which her presence was

required and that, if Allen had thought otherwise, she could

have asked to attend meetings, but never did. Allen claimed

that her own disagreement with Hill’s assessment of her

performance and with Hill’s decisions about who to include in

meetings created triable issues precluding summary judgment.

Because we conclude that the proffered facts could not, if

presented at trial, support a jury verdict that retaliation was

Hill’s real motive for the actions of which Allen complains,

we affirm the district court’s grant of summary judgment in

favor of the Department.

I. BACKGROUND

Relevant background to the current retaliation case began

over a decade ago, when Allen worked as a Director of

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Financial Management at ICE, overseeing financial systems

there and at five other bureaus within the Department of

Homeland Security. Allen v. Napolitano (“Allen I”), 774 F.

Supp. 2d 186, 191 (D.D.C. 2011). In 2006, Allen filed an

EEO complaint alleging a hostile work environment,

discrimination on the basis of sex, age, and disability, and

retaliation. Id. at 191-92. After Allen filed her first

complaint, ICE reassigned her from that position to a posting

as Director of Internal Controls in ICE’s Office of Assurance

and Compliance (OAC). See id. at 192. OAC evaluates and

develops plans to improve ICE’s internal financial controls

and reports the results of internal control testing and other

audit activities within the Department. Allen’s job at OAC

was to supervise certain financial controls tests and functions,

including by managing contracts with outside accounting

firms. Allen v. Napolitano (“Allen II”), 943 F. Supp. 2d 40,

43-44 (D.D.C. 2013). Allen filed a second EEO complaint in

2007 alleging that her reassignment to OAC was retaliatory.

See Allen I, 774 F. Supp. 2d at 192.

In February 2008, the Department entered into a

settlement agreement with Allen resolving her 2006 and 2007

complaints. Id. The settlement obligated ICE to give Allen a

step promotion, provide her back pay, attorneys’ fees and

costs, and, based on a list of Allen’s accomplishments, change

her performance reviews for 2005–2007 to award her the

highest performance rating. Id. Kathy Hill, Allen’s new

supervisor following her reassignment to OAC, held the

position of Acting Director of OAC. The Department charged

Hill with implementing the performance rating adjustments

under the settlement agreement.

In this suit, Allen alleges that Hill and others retaliated

against her in violation of Title VII of the Civil Rights Act of

1964 (codified as amended at 42 U.S.C. § 2000e et seq.), by

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giving her an unfavorable performance review in 2008 (the

fiscal year after the three covered by the settlement), and

excluding her from important meetings to which Allen alleges

she should have been invited.1

The district court granted summary judgment to the

Department. The Department supported its motion by

showing that the unfavorable performance ratings were based

on Hill’s determination that Allen failed adequately to oversee

contractors and agency satellite offices whose compliance she

supervised, missed deadlines for two projects, and that Hill

did not exclude Allen from any meetings at which Hill

understood her presence to be warranted. Allen argued that

each of the Department’s reasons was “unworthy of

credence,” see Jones v. Bernanke, 557 F.3d 670, 678 (D.C.

Cir. 2009) (internal quotation marks omitted), and was put

forward as a pretext for intentional retaliation. She disagreed

with Hill’s assessment of her performance on various

projects, and contended, with some support from contractors’

employees, that projects she supervised had been discussed at

meetings without her. The court held that Allen failed to

rebut the Department’s justifications for her performance

ratings, Allen II, 943 F. Supp. 2d at 48-52, and that the

claimed exclusions from meetings were not actionable

employment decisions, id. at 45-47.

On appeal, Allen challenges the grant of summary

judgment on those claims. We review de novo the district

court’s decision. McGrath v. Clinton, 666 F.3d 1377, 1379

(D.C. Cir. 2012).

1

The district court had earlier entered partial summary judgment on

other retaliation claims not at issue here. See Allen I, 774 F. Supp.

2d at 206.

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II. LEGAL STANDARD

Summary judgment is appropriate only if 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).

At summary judgment, the court must avoid weighing the

evidence and making credibility determinations. We instead

assume all conflicts would be resolved and all inferences

drawn in the nonmoving party’s favor and inquire whether, on

the evidence so viewed, “a reasonable jury could return a

verdict for the nonmoving party.” Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986).

Title VII prohibits federal agencies from discriminating

against their employees on the basis of race, color, religion,

sex, or national origin, 42 U.S.C. § 2000e-16(a), and forbids

retaliation against an employee because she has “opposed any

practice made an unlawful employment practice by” Title VII,

or because she “made a charge” under Title VII, id. § 2000e-

3(a).2 To prove unlawful retaliation, an employee must

establish three elements: that she made a charge or opposed a

practice made unlawful by Title VII, that the employer took a

materially adverse action against her, and that the employer

took the action because of her protected conduct. McGrath,

666 F.3d at 1380. Our analysis at summary judgment tracks

that of the trier of fact at trial. In other words, a plaintiff

seeking to defeat summary judgment on her retaliation claim

must point to evidence from which a reasonable juror could

2

Title VII contains separate provisions, slightly differently worded,

prohibiting discrimination by private employers and governmental

agencies, but this court has construed them as imposing the same

restrictions and cites the cases construing them interchangeably.

George v. Leavitt, 407 F.3d 405, 411 (D.C. Cir. 2005).

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conclude that the employer took adverse employment action

against her in retaliation for her protected activity.

Cases asserting unlawful retaliation in violation of Title

VII typically depend on circumstantial evidence of retaliatory

motive. Direct evidence of reprisal—such as a statement by a

managerial employee that she or he took action because an

employee had filed a charge of discrimination—is the

exception rather than the rule.3 A Title VII plaintiff may raise

a preliminary, circumstantial inference of prohibited motive

through the burden-shifting framework of McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973). Under

McDonnell Douglas, a retaliation plaintiff need only show

that she engaged in protected activity, that she suffered an

adverse employment action, and that there was a causal link

between the former and the latter. Hamilton v. Geithner, 666

F.3d 1344, 1357 (D.C. Cir. 2012). The function of the prima

facie case is to trigger the employer’s burden to come forward

with its actual legitimate, non-retaliatory reason for the

challenged action. If the employer fails to do so, the

employee is entitled to judgment.

Once the employer proffers a non-retaliatory reason for

the challenged employment action, the burden-shifting

framework falls away, and the “central question” becomes

whether “the employee produced sufficient evidence for a

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

discriminatory [or non-retaliatory] reason was not the actual

reason and that the employer intentionally discriminated [or

3

An example of that rare case is Forman v. Small, in which the

recommending official stated that he did not make a promotion

recommendation because the plaintiff “had already filed an EEO

complaint” over an earlier non-promotion. 271 F.3d 285, 290, 300

(D.C. Cir. 2001).

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retaliated] against the employee.” Brady v. Office of Sergeant

at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008); see Jones, 557

F.3d at 678 (applying Brady to retaliation claim).4 A key

component of retaliation cases, in common with

discrimination claims, is thus the battle over pretext. This is

the posture of Allen’s case: the Department has put forth its

reasons for the actions that Allen claims constitute retaliation.

The question is thus whether those reasons are the actual

reasons, or whether they are a mask for retaliation.

A plaintiff opposing summary judgment may raise an

inference that the employer’s purpose was retaliatory by

pointing to evidence attacking the employer’s proffered

reasons, together with other evidence, if any, suggesting that

retaliation was the real reason. Whether the available

evidence suffices to support a jury finding of retaliation will,

necessarily, be a contextual judgment.

There are multiple ways in which circumstantial evidence

may support an inference that an employer’s stated reason for

a challenged employment action was not the actual reason,

and that the real reason was prohibited discrimination or

retaliation. The temporal proximity of an adverse action close

on the heels of protected activity is a common and highly

probative type of circumstantial evidence of retaliation. See

4

To say that the burden-shifting framework falls away under Brady

is not to suggest that the evidence supporting the prima facie case

loses relevance. See Reeves v. Sanderson Plumbing Prods., Inc.,

530 U.S. 133, 143 (2000) (noting that, “although the presumption

of discrimination ‘drops out of the picture’ once the defendant

meets its burden of production, the trier of fact may still consider

the evidence establishing the plaintiff’s prima facie case ‘and

inferences properly drawn therefrom on the issue of whether the

defendant’s explanation is pretextual’”) (citations, ellipsis omitted).

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Hamilton, 666 F.3d at 1357-59. Other common ways of

proving invidious motive—whether retaliation or

discrimination—include pointing to evidence that the

employer treated other, similarly situated employees better;

that the employer is “lying about the underlying facts” of its

decision; that there were “changes and inconsistencies” in the

employer’s given reasons for the decision; that the employer

failed to “follow established procedures or criteria”; or that

the employer’s “general treatment of minority employees”

(or, in the retaliation context, employees who asserted their

Title VII rights) was worse than its treatment of non-

minorities (or employees who did not assert their Title VII

rights). Brady, 520 F.3d at 495 & n.3. Invidious motive may

also be inferred from “‘an error too obvious to be

unintentional.’” Grosdidier v. Broad. Bd. of Governors, 709

F.3d 19, 26 (D.C. Cir. 2013) (quoting Fischbach v. D.C.

Dep’t of Corr., 86 F.3d 1180, 1183 (D.C. Cir. 1996)).

Typically, successful rebuttal of an employer’s stated

reason counts as evidence of the invidious motive that is a

required element of a disparate treatment or retaliation claim.

George v. Leavitt, 407 F.3d 405, 413 (D.C. Cir. 2005). As

just noted, it is often reasonable to think that an employer who

lies or obviously bluffs about or shifts its rationale for

challenged action is culpable of the charged discrimination or

retaliation. Evidence that an employer’s proffered reasons are

“unworthy of credence,” Jones, 557 F.3d at 678 (internal

quotation marks omitted), has “considerable evidentiary

significance” because “a lie is evidence of consciousness of

guilt,” Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1292-93

(D.C. Cir. 1998) (en banc); see also Reeves v. Sanderson

Plumbing Prods., Inc., 530 U.S. 133, 147 (2000). But that is

not inevitably the case. Successfully attacking an employer’s

proffered reason “alone will not always suffice to permit an

inference of discrimination.” Aka, 156 F.3d at 1292; see also

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St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993).

Under the standard for judgment as a matter of law, which

tracks the standard for summary judgment, the Supreme Court

has observed that judgment in an employer’s favor is

appropriate where the plaintiff’s evidence calling the

employer’s proffered reason into doubt is weak, and the

record also contains “abundant and uncontroverted

independent evidence that no discrimination had occurred.”

Reeves, 530 U.S. at 148 (citing Aka, 156 F.3d at 1291-92).

We have also recognized that summary judgment against the

plaintiff is appropriate if the plaintiff’s showing of fabrication

by her employer “conclusively demonstrates that the real

explanation for the employer’s behavior is not discrimination,

but some other motivation.” Aka, 156 F.3d at 1290-91.

This case addresses a particular kind of contest over

pretext: Disagreement between a middle manager and her

immediate supervisor over the validity of discretionary

judgments about the subordinate’s job performance. Title VII

requires us to be vigilant in smoking out unlawful motives

while remaining “reluctan[t] to become involved in the

micromanagement of everyday employment decisions.”

Forman v. Small, 271 F.3d 285, 291 (D.C. Cir. 2001). There

were no relevant comparators under Hill’s direct supervision.

There was no established track record of Hill’s treatment of

Allen before she filed her EEO complaints, because it was

only thereafter that Allen was transferred and placed under

Hill’s supervision. There are no witnesses other than Allen

whose testimony supports her claims. Allen’s testimony is

itself competent evidence, of course, but the facts that it seeks

to call into question are Hill’s judgments as to whether Allen

was a sufficiently communicative and active manager, and

which of Hill’s meetings would address technical aspects of

contracts under Allen’s purview such that Allen should be in

attendance. In other words, each is very much a discretionary

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judgment call about one manager’s supervision of another.

Invidious motive is especially tricky to establish in such

circumstances because judicially wieldy metrics of fair

treatment are difficult for plaintiffs to establish. It is where

the non-retaliatory or non-discriminatory baseline is elusive

of proof that courts are most apt to hesitate to invade

employers’ discretion in workplace management. See

Fischbach, 86 F.3d at 1183. “If the employer’s stated belief

about the underlying facts is reasonable in light of the

evidence,” and is honestly held, there ordinarily is no basis to

put the case to a jury, even if the employee disagrees with the

discretionary decision the employer made. Brady, 520 F.3d at

495; see George, 407 F.3d at 415.

III. ANALYSIS

Allen urges us to find that the Department unlawfully

retaliated against her in the months following the settlement

of her earlier discrimination and retaliation claims, but the

evidence falls short of raising an inference of retaliatory

purpose. Allen claims she deserved a higher performance

rating than the one Hill gave her and that she should have

been invited to certain meetings that she asserts were essential

to her job duties. Allen has explained why she disagrees with

Hill’s proffered justifications for the challenged actions, but

mere disagreement with an employer about reasonable

judgments concerning the employee’s evaluation and meeting

participation—judgments that are especially subject to

managerial discretion—is not enough to sustain a Title VII

claim. Allen must identify facts from which a reasonable jury

could conclude that Hill’s justifications for the contested

performance rating and meeting-composition decisions were

not her real reasons, but were instead pretexts for retaliation.

Because Allen has not raised a genuine dispute of fact as to

whether Hill honestly and reasonably believed the legitimate,

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non-retaliatory reasons she gave for her treatment of Allen,

the district court did not err in granting the Department’s

motion for summary judgment.

A. Performance Review

Allen’s 2008 performance review period began in

October 2007 and ended September 30, 2008. Hill rated

Allen on four “performance goals.” Of those four goals,

Allen received the highest rating (Achieved Excellence) on

two of them, but only the next-highest rating (Exceeded

Expectations) on another, and the third-from-highest rating

(Achieved Expectations) on a fourth. Her overall rating—

combining scores on her achievement of those four goals with

scores on seven “core competencies”—was at the Achieved

Expectations level. Allen challenges two of her performance

goal ratings, which affected her overall rating, and Hill’s

failure to provide Allen a mid-year performance review as

unlawful retaliation.

1. Performance Goal 2. Allen contends that she

deserved a rating of Achieved Excellence rather than

Exceeded Expectations on Performance Goal 2, regarding her

performance in preparing ICE for a 2009 audit. 2008 Perf.

Rev., J.A. 183, at 3-5. The Department gave two reasons for

the rating.

First, Hill wrote in Allen’s performance review that Allen

failed to communicate adequately with “subject matter

experts” over her changes to documentation relating to budget

and payroll systems. Id. at 14-15. The “subject matter

experts” at issue were at ICE’s finance center in Burlington,

Vermont, where invoices are paid and payments to ICE are

processed. See Allen Decl., J.A. 559 ¶¶ 3-4. According to

Hill, the finance center complained that Allen made changes

to drafts of documents without consulting them or explaining

12

the changes, resulting in confusion at the finance center as to

how to respond. Hill Decl., J.A. 478 ¶ 17. Allen has not

disputed that the finance center complained. Instead, she

argues that the complaint was not her fault, because, she says,

Hill never notified her of the requirement that she collaborate

with the finance center. But Performance Goal 2 of Allen’s

performance plan—which Hill developed with Allen’s

detailed input and review—required Allen to collaborate with

the ICE “Program Offices” to ensure a successful audit. 2008

Perf. Rev. at 3-4. Allen asserts Hill’s definitions were

ambiguous and made it unclear what her responsibilities were

in dealing with the Burlington Finance Center, but Hill avers

that ICE finance centers were routinely referred to as both

“Program Offices” (components within ICE) and “subject

matter experts” (entities whose staff were most

knowledgeable about the processes Allen was evaluating),

and thus were clearly entities included in Allen’s Performance

Goal. Hill Decl. ¶ 9. Allen provides no further response to

Hill’s assertions that Allen knew or should have known that

the Burlington Finance Center was among the entities with

which she was expected to communicate.

Allen also argues that it would have been inappropriate to

communicate at that time with the Burlington Finance Center

about the 2009 audit because that center was the subject of the

audit Allen was managing, and “[a]s a general matter, an

auditee does not have input into the auditor’s evaluation of

their work.” Allen Decl. ¶ 4. But Allen identifies no

evidence showing that she was auditing the Burlington

Finance Center, and the Department’s evidence refutes that

contention. See Supp. Hill Decl., J.A. 563 ¶ 4 (“While our

office did audit-related work, the ultimate audit was

performed by KPMG.”). Even if Allen were correct that it

would have been inappropriate for her to collaborate with the

finance center, there is no evidence that she brought any such

13

concern to Hill’s attention. And even if Allen had established

that her Performance Goal did not encompass collaborating

with the finance center, she has failed to identify a material

issue of fact in dispute because she points to nothing that

suggests that Hill’s putative error on that score was either

dishonest or unreasonable. Allen’s effort to dispute the scope

of her duties as a basis for the challenged performance rating

thus raises no inference of retaliatory motive. To the

contrary, after having maintained throughout this litigation

that she was not aware that collaboration was required, and

that any collaboration with the finance center would have

been inappropriate, Allen asserts in her reply brief that she did

in fact collaborate with the finance center. Allen Reply Br.

13.

Hill provided a second, independent justification for the

Performance Goal 2 rating: delays in the administration of an

internal financial control test called the “Test of Operating

Effectiveness.” Hill wrote in Allen’s performance review that

Allen failed adequately to oversee and coordinate with

PricewaterhouseCoopers, an ICE contractor working on the

test. 2008 Perf. Rev. at 15. Hill “believed that if [the project]

had been managed effectively, it could have been completed

in the original deadline[].” Hill Decl. ¶ 18. Allen claims the

delays were actually due to “a significant expansion of the

scope of the project midway through”—an expansion Allen

says she recommended against. Allen Decl. ¶ 5. She

produced no evidence, however, that Hill lacked grounds for

expanding the project, let alone that Allen predicted and

timely advised steps to avoid the delays she concedes befell

the project. Hence, she has failed to identify any material

factual dispute about the validity of Hill’s criticism.

Allen also claims that Hill excluded her from meetings

with PricewaterhouseCoopers, and that those exclusions

14

contributed to any “lack of oversight and coordination” of that

contractor’s work. The meetings from which Allen claims

she was excluded occurred after the 2008 review period

closed, however, and are therefore irrelevant to her challenge

to the performance ratings. Allen’s suggestion that she did, in

fact, fail adequately to coordinate with the contractors, but

that it was Hill’s fault she did so, undermines her argument

that no lack of coordination occurred and that the delays were

due to the expanded scope of the project. In sum, Allen has

not identified record evidence upon which a reasonable jury

could conclude that Hill’s rating of Allen on Performance

Goal 2 was done in retaliation for Allen’s prior protected

conduct.

2. Performance Goal 3. Hill asserted that Allen’s rating

of Achieved Expectations on Performance Goal 3, rather than

the Achieved Excellence rating Allen believed she deserved,

was similarly based on her evaluation of Allen’s oversight of

ICE finance centers during a project that required the

collection of documents from those centers for testing; delays

in document collection resulted in delays in the overall

project. See 2008 Perf. Rev. at 5, 15; Hill Decl. ¶ 4. Allen

does not dispute that the project delays were caused by a

failure to get the documents from the finance center in a

timely manner. Indeed, Allen initially blamed the delays on

Hill, who Allen says made the “high risk decision” of

assigning the testing work to the finance centers rather than to

the two employees at the Office of Assurance and

Compliance whom Allen directly oversaw. J.A. 510. Later,

Allen blamed her subordinate, Melissa Crane, for the same

delays, on the ground that Crane “was assigned as the project

leader.” J.A. 518. Allen avers that she did not intervene

earlier because Crane never informed her of any problems.

But the record shows that Allen was aware at least two

months in advance that her office was having difficulty

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getting the documents. See J.A. 511, 516. Allen made little

progress to remedy the situation in those intervening months.

Hill claims she personally had to “intervene in the situation

and direct the efforts to locate the missing documentation to

resolve the situation.” Hill Decl. ¶ 21. Despite that “crisis,”

Hill gave Allen the Achieved Expectations rating and not a

lower mark because, once arrangements were made to adjust

the deadline, Allen was able to meet it. Id. Even if Allen

were right that the delays were really caused by Hill’s “high

risk decision” or Crane’s failure to inform Allen of the

problems sooner, as a manager, Hill reasonably expected

Allen to diagnose, communicate over, and forestall problems;

record evidence raises no inference that Hill’s judgments that

Allen had failed adequately to do so were unreasonable or

dishonest.

Allen also claims a jury could infer retaliation based on

the fact that Hill approved the highest level rating for Crane,

meaning that Crane received a higher rating than Allen for

their work on the same project. Hill thought it was reasonable

to rate Allen’s subordinate more highly than Allen herself

because it was Allen, not her subordinate, who had

managerial responsibility. Allen II, 943 F. Supp. 2d at 51; see

also Hill Decl. ¶ 22 (justifying rating on grounds that Allen

“needed to take ownership, and not seek to deflect

responsibility to those that she supervised”). Although Allen

disagrees with the rating difference on its merits, she

identifies no reason to question the genuineness of Hill’s

stated justification for the differential ratings.

3. Mid-Year Review. Allen also argues that Hill

deviated from established Department of Homeland Security

personnel procedure by failing to give Allen a mid-year

performance review in the 2008 fiscal year, casting doubt on

the authenticity of the reasons given for her performance

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ratings. The record demonstrates that, under ordinary

circumstances, supervisors were expected to give mid-year

reviews. Keenan Dep., J.A. 311, at 37. Allen’s evidence also

shows that mid-year reviews were called for “halfway through

the rating period,” id., but that Allen’s performance plan was

not finalized until May 2008, almost eight months into the

performance period, Pl. St. Mat. Facts, J.A. 544 ¶ 8; Hill

Decl. ¶ 11. Allen did not introduce evidence demonstrating

that, under those circumstances, Department policy called for

a mid-year review, and the Department has consistently

maintained otherwise. Consequently, she has failed to raise a

genuine dispute of material fact concerning her claim that Hill

deviated from established procedures.

* * *

Nothing in the record suggests that Hill did not genuinely

and reasonably believe she made the right decision in the

performance ratings she assigned to Allen, and in providing

no mid-year review while the parties were negotiating Allen’s

performance goals. Given the lack of evidence tending to

undermine the reasons given by Hill, summary judgment in

favor of the Department on Allen’s performance ratings claim

was warranted.

B. Meeting Exclusions

We also affirm the grant of summary judgment for the

Department on Allen’s claim of retaliatory exclusion from

meetings, but on grounds different from the district court’s.

Because Allen failed to create any material factual dispute

about the legitimate, non-retaliatory reasons the Department

proffered, we do not address the question whether the

challenged actions were insufficiently consequential to count

as materially adverse, and thus adequate to support a claim of

unlawful retaliation.

17

Allen lists a battery of meetings to which the Department

concedes she was not invited. According to Hill, she did not

include Allen in the listed meetings because they involved

subjects that were not part of Allen’s assigned duties, were

high level meetings between Hill and her superiors at which

Allen’s presence was not appropriate, or were convened by

Hill’s superiors or others, not Hill. She also points out that

Allen could have sought to participate in the meetings, but

never did. Allen Dep., J.A. 358, at 33:13-34:17 (Aug. 14,

2012); see also Hill Decl. ¶ 33. Allen fails to identify

evidence materially disputing Hill’s explanations.

Allen focuses primarily on Hill’s meetings with ICE

contractor PricewaterhouseCoopers. She says the meetings

involved discussions of ongoing work on a contract for which

Allen was the Contracting Officer’s Technical Representative

(COTR), and that such discussions would have been

inappropriate in the COTR’s absence. Hill conceded the

meetings took place, but said that they were held to discuss

potential future business opportunities—a kind of meeting

Allen acknowledges would not require her presence. Allen

Dep. at 79:21-80:4. Allen maintains that Hill impermissibly

discussed the ongoing PricewaterhouseCoopers contract at

some of those meetings, and that two contractors complained

to her that Hill had discussed the ongoing work in meetings.

Id. at 76-77, 96.

The Department objects that Allen’s testimony

concerning what attendees told her about meetings is

inadmissible hearsay. Def. Br. 57. Allen has made no effort

to demonstrate that she could introduce the evidence in an

admissible form at trial, such as through the testimony of the

attendees themselves. See Greer v. Paulson, 505 F.3d 1306,

1315 (D.C. Cir. 2007). The Department did not raise a

hearsay objection before the district court, however, so that

18

objection is not preserved. See Catrett v. Johns-Manville

Sales Corp., 826 F.2d 33, 37-38 (D.C. Cir. 1987); 10A

Charles Alan Wright & Arthur R. Miller, Federal Practice &

Procedure § 2722 (3d ed. 2015). In any event, Allen’s

recounting of what the contractors told her is corroborated by

Hill’s concession that “sometimes” contractors would update

Hill on the status of ongoing work in Allen’s absence. Hill

Dep., J.A. 266, at 153:1-11. Hill thus may have breached

protocol on occasion by discussing ongoing work without

Allen, the COTR, in attendance.

Departure from established procedures can be probative

of pretext, Brady, 520 F.3d at 495 n.3, but none of Allen’s

evidence suggests that Hill’s alleged violation was any kind

of conscious evasion. Allen does not assert that Hill lied

about the content of the meetings or covered up what

happened during them, or that Hill did not honestly and

reasonably believe that she acted appropriately. If a

supervisor’s “stated belief about the underlying facts is

reasonable in light of the evidence, . . . there ordinarily is no

basis for permitting a jury to conclude that the employer is

lying about the underlying facts.” Id. at 495.

Allen’s evidence concerning the remaining meetings also

falls short. Hill met with ICE contractor Deloitte & Touche

on subjects over which Allen had no responsibility. Allen

Dep. at 24:5-12. And when Hill talked with Department

personnel over the phone or in person without prior planning

about matters relevant to Allen’s responsibilities, she did not

hide those meetings, but reported to Allen about them by

e-mail. See J.A. 538 (Whalen meeting), 539 (Wetklow

meeting), 542 (Mason meeting). Finally, nothing in the

record supports Allen’s contention that she should have been

included in the high level meeting in December 2008 relating

to the “Senior Advisory Team.”

19

Allen contends that we may infer pretext from Hill’s

reliance on post-hoc rationales for the meeting exclusions.

She asserts that Hill was unable during her deposition to

explain her failure to invite Allen to the meetings, but that,

when the Department moved for summary judgment ten

months later, Hill submitted a declaration detailing reasons

she had not mentioned previously. Allen Br. 35-36. Allen

seeks to rely on our recognition that “changes and

inconsistencies in the stated reasons for the adverse action”

may give rise to an inference of pretext. Brady, 520 F.3d at

495 n.3. The record in this case, however, belies any

inconsistency such as would raise an inference that the

Department’s proffered reasons were invented post hoc to

cover up retaliatory motives. Hill’s 2009 EEO declaration,

signed three years before Hill’s deposition, details several of

the explanations that the Department now advances in

litigation. Allen quibbles with the phrasing of some of those

explanations, but Hill’s EEO declaration and her summary

judgment declaration are consistent in all material aspects.

Moreover, Allen mischaracterizes Hill’s purported failure to

explain the meetings during her deposition. During the

deposition, Hill repeatedly said that the bases for her

decisions whether to invite Allen to a meeting depended on

the specific meeting at issue, and frequently said that she did

not understand Allen’s counsel’s confusing questions. See,

e.g., Hill Dep. at 130:22-131:1, 132:12-13, 132:17, 133:16,

137:2-8. When counsel asked her clearly about specific

meetings, Hill had no difficulty explaining her decisions. See,

e.g., id. at 153:1-3. With respect to the few, truncated

deposition excerpts regarding meeting attendance that are part

of the record, Hill’s explanations did not differ from those she

gave both in her earlier EEO declaration and in her later

summary judgment declaration.

20

Allen has failed to rebut Hill’s proffered legitimate, non-

retaliatory reasons for not inviting Allen to certain meetings.

Hill has pointed to evidence from which a jury could conclude

that she honestly and reasonably believed Allen’s presence

was either not required or inappropriate. Allen has failed to

identify evidence from which a reasonable jury could not only

disbelieve Hill’s reasons, but conclude that the real reason

Hill did not invite Allen to certain meetings and engaged in

discussions about the ongoing contract work without Allen

present was to retaliate against Allen for her protected

activity.

C. Other Allegations of Retaliation

Allen cites as further support for her retaliation claim

incidents over and above the acts that she has identified as

actionable adverse treatment, i.e., the performance ratings and

non-inclusion in meetings. Allen contends that Hill’s

antagonism toward her began immediately upon Hill

becoming aware of Allen’s settlement of her earlier

discrimination and retaliation claims. It fell to Hill, as Allen’s

new supervisor, to implement the settlement agreement.

Allen contends that Hill did so in a grudging manner that,

“while technically in compliance with the settlement

agreement, may be viewed by a jury as intentionally designed

to retaliate” against Allen. Allen Reply Br. 7. Allen asserts

that Hill’s approach to implementation of the settlement tends

to show Hill’s retaliatory motive and, together with the other

evidence, supports her claim of unlawful reprisal. Allen also

relies on the “entire course of Hill’s treatment of Allen . . .

beg[inning] almost immediately after Hill learned that Allen

had engaged in EEO activity” to show such a motive. Id. at 8.

It is well established that evidence of a pattern of

antagonism following closely on the heels of protected

21

activity and related to the challenged employment action may

establish the causation element of a Title VII plaintiff’s prima

facie case. See Hamilton, 666 F.3d at 1357-59 (holding the

requisite causation showing was made where plaintiff “was

denied information about a possible detail just two months

after filing an EEO complaint and, approximately one month

later, was ultimately passed over for the detail”). Evidence

that a supervisor was repeatedly hostile toward an employee,

beginning shortly after the supervisor learned of the

employee’s protected activity, is bound to be more probative

than evidence of general hostility without any such temporal

proximity.5

5

This court has also suggested that a pattern of negative, on-the-job

treatment could add up to a materially adverse employment action,

even if any one of the employer’s complained-of acts would not

alone count as materially adverse. See Mogenhan v. Napolitano,

613 F.3d 1162, 1166 (D.C. Cir. 2010) (applying Title VII

framework to Rehabilitation Act claim and noting that two

employment actions, “perhaps alone but certainly in combination—

suffice” to satisfy the statutory requirement that employment action

be materially adverse); cf. Taylor v. Solis, 571 F.3d 1313, 1332

(D.C. Cir. 2009) (Rogers, J., dissenting) (“[R]etaliation can involve

a thousand cuts . . . . Where one of those cuts was a materially

adverse action, it blinks reality to suggest the other 999 shed no

light on whether that cut was intentional and retaliatory.” (internal

citation and quotation marks omitted)). That aggregation principle

makes no difference here, however, because we have assumed for

purposes of this appeal that each of the challenged actions upon

which Allen relies was materially adverse. We thus need not

decide whether considering all her allegations together pushes the

other activity Allen describes over the line to count as materially

adverse employer conduct such as might have dissuaded a

reasonable employee from making or supporting an equal

employment claim. Our decision does not turn on any shortfall in

22

We have also held, however, that the fact that employer

adverse action follows closely after an employee’s protected

assertion of rights is not, by itself, always enough to survive

summary judgment. Title VII does not prohibit antagonism in

the workplace. Once an employer has put forth legitimate,

non-retaliatory reasons for a challenged action, “‘positive

evidence beyond mere proximity is required to defeat the

presumption that the proffered explanations are genuine.’”

Hamilton, 666 F.3d at 1359 (quoting Woodruff v. Peters, 482

F.3d 521, 530 (D.C. Cir. 2007)); see also Talavera v. Shah,

638 F.3d 303, 313 (D.C. Cir. 2011); Hughes v. Derwinski,

967 F.2d 1168, 1174-75 (7th Cir. 1992). In Woodruff, we

explained in an analogous context that, “[i]f temporal

proximity sufficed to rebut a legitimate proffer, then protected

activities would effectively grant employees a period of

immunity, during which no act, however egregious, would

support summary judgment for the employer in a subsequent

retaliation claim.” 482 F.3d at 530.

Here, Allen disagrees with Hill’s reasons for her

performance review and non-inclusion in various meetings.

Those adverse actions occurred nine months after the

settlement of Allen’s earlier claims. As discussed above,

Allen’s rebuttal efforts have not succeeded in raising material

factual disputes over the Department’s proffered legitimate,

non-retaliatory reasons. Adding to the mix consideration of

Hill’s assertedly compliant but hostile implementation of the

settlement agreement several months before the challenged

adverse acts does not tip the balance in favor of making it

plausible that the real reason Hill acted as she did was to get

back at Allen for having sued. Nor does adding the other

Allen’s showing of adverse action; what we have concluded is

wanting is evidence of retaliatory motive.

23

incidents of antagonism to which Allen points as evidence of

retaliatory motive, such as Hill’s failure timely to submit a

recommendation for Allen for a professional opportunity,

support an inference of retaliation. See Allen Br. 7, 33.

In sum, even assuming that a jury were to credit Allen’s

contentions that Hill implemented the settlement agreement

and took other actions in a hostile manner, we do not believe

that a reasonable jury could conclude that any adverse action

of which Allen complains in this case—the performance

ratings and non-inclusion in meetings—was taken in

retaliation. As we have discussed, we have reviewed the

record evidence and have concluded that Allen has not carried

her burden to raise an inference that a reasonable jury could

credit that Hill’s proffered reasons for her evaluation of

Allen’s work in 2008 and her decisions about meeting

attendance were false, and that the real reason was to retaliate

against Allen for her earlier, protected activity.

* * *

For the foregoing reasons, the judgment of the district

court is affirmed.

So ordered.