Sheryl Taylor v. Timothy Geithner

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 13a0001p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

X

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SHERYL TAYLOR,

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Plaintiff-Appellant,

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No. 11-6122

v.

,

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TIMOTHY GEITHNER, Secretary, Department

Defendant-Appellee. N-

of Treasury,

Appeal from the United States District Court

for the Western District of Tennessee at Memphis.

No. 2:08-cv-2735—Samuel H. Mays, Jr., District Judge.

Argued: October 4, 2012

Decided and Filed: January 2, 2013

Before: MERRITT, MOORE, and McKEAGUE, Circuit Judges.

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COUNSEL

ARGUED: David H. Shapiro, SWICK & SHAPIRO, P.C., Washington, D.C., for

Appellant. Harriett Miller Halmon, UNITED STATES ATTORNEY’S OFFICE,

Memphis, Tennessee, for Appellee. ON BRIEF: David H. Shapiro, SWICK &

SHAPIRO, P.C., Washington, D.C., for Appellant. Harriett Miller Halmon, UNITED

STATES ATTORNEY’S OFFICE, Memphis, Tennessee, for Appellee.

MOORE, J., delivered the opinion of the court in which MERRITT, J., joined,

and McKEAGUE, J., joined in part. McKEAGUE, J. (pp. 16–21), delivered a separate

opinion concurring in part and dissenting in part.

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OPINION

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KAREN NELSON MOORE, Circuit Judge. At issue in this appeal is a matter

of first impression for this court: whether Congress has waived sovereign immunity for

breach-of-settlement-agreement claims brought under Title VII against the federal

1

No. 11-6122 Taylor v. Geithner Page 2

government as employer. Plaintiff-Appellant Sheryl Taylor, an employee of the Internal

Revenue Service (“IRS”), brought breach-of-settlement-agreement and retaliation claims

against Defendant-Appellee Timothy Geithner based on alleged noncompliance with the

settlement agreement by the IRS and on a series of purported retaliatory actions taken

by her supervisor. The district court dismissed the breach-of-settlement-agreement claim

for lack of subject-matter jurisdiction and granted Geithner’s motion for summary

judgment on the retaliation claim. Taylor appeals both determinations.

Because Congress has not expressly waived sovereign immunity for breach-of-

settlement-agreement claims, we AFFIRM the district court’s dismissal for lack of

subject-matter jurisdiction on that claim. However, Taylor has produced sufficient

evidence to establish a prima facie case of retaliation, and we therefore REVERSE the

district court’s grant of summary judgment to Geithner on Taylor’s retaliation claim.

We REMAND for further proceedings consistent with this opinion.

I. BACKGROUND

Sheryl Taylor is an employee of the IRS. In early 2004, Taylor began applying

for a series of promotions and transfers, and she was rejected from all until she received

a promotion on September 17, 2006. On June 25, 2004, after being denied a promotion,

Taylor filed her first discrimination complaint with the agency. R. 63-10 (Individual

Compl. of Employment Discrimination at 1–3) (Page ID #570–72). In July 2004, Taylor

was assigned to work in a unit supervised by Ethel Shields, where Taylor remained until

September 17, 2006. R. 53-1 (Recommendation Email at 1) (Page ID #443); R. 63-1

(Shields Decl. ¶ 4) (Page ID #539). During her time working in this unit, Taylor alleges

that Shields took several retaliatory actions against Taylor, including written reprimands,

a three-day suspension without pay, and providing negative references for Taylor to

prospective employers, which in turn, Taylor alleges, caused her to have been rejected

from fifty-two positions. Based on these alleged actions, Taylor filed additional

complaints with the agency for retaliation.

No. 11-6122 Taylor v. Geithner Page 3

On July 19, 2005, the IRS and Taylor entered into a settlement agreement

resolving Taylor’s April 13, 2005 Equal Employment Opportunity (“EEO”) pre-

complaint of discrimination. R. 53-1 (Resolution Agreement at 1) (Page ID #444). The

agreement required the IRS to remove records of Taylor’s three-day suspension from

specific files and required Taylor to waive further litigation on this claim. Id. at 1–2

(Page ID #444–45). It also contained procedures by which Taylor could report

noncompliance with the settlement agreement by the IRS. Id. These procedures track

the language of 29 C.F.R. § 1614.504, a key provision discussed below.

On August 18, 2005, Taylor took advantage of these procedures and sent a letter

to the agency alleging noncompliance by the IRS with the settlement agreement. See

R. 53-1 (Department of Treasury 2006 Final Agency Decision at 1) (Page ID #449).

Specifically, Taylor contended that the IRS did not remove the record of the three-day

suspension from her Time and Attendance file. Id. On November 1, 2006, the agency

issued a decision concluding that although the IRS had breached the referenced portion

of the settlement agreement, the IRS was currently in compliance because it had

removed the record upon receiving this inquiry. Id. at 2 (Page ID #450). The final

agency decision contained a statement regarding notice of appeal rights, which cited

§ 1614.504. Id. Taylor later filed a second complaint with the agency based on the same

allegations, and this complaint was similarly denied. R. 53-1 (Department of Treasury

2008 Final Agency Decision at 1) (Page ID #465). Taylor did not appeal either decision.

On October 22, 2008, Taylor filed a complaint in the U.S. District Court for the

Western District of Tennessee alleging a retaliation claim against Geithner under

42 U.S.C. § 2000e-16(a). R. 1 (Compl.) (Page ID #1–5). On January 20, 2009, Taylor

amended her complaint to include a breach-of-settlement-agreement claim. R. 5 (Am.

Compl. at ¶¶ 23–24) (Page ID #18–19). Geithner filed a motion to dismiss Taylor’s

breach-of-settlement-agreement claim for lack of subject-matter jurisdiction under

Federal Rule of Civil Procedure 12(b)(1) and a motion for summary judgment on

Taylor’s retaliation claim. R. 53 (Def.’s Mot. to Dismiss & Mot. for Summ. J. at 1)

(Page ID #383). The district court granted Geithner’s motions as to both claims and

No. 11-6122 Taylor v. Geithner Page 4

subsequently denied Taylor’s Rule 59(e) motion to amend or alter the judgment. Taylor

v. Geithner, No. 08-2735, 2011 WL 2669061 (W.D. Tenn. July 6, 2011); R. 100 (Order

Denying Plaintiff’s Mot.) (Page ID #865).

II. BREACH-OF-SETTLEMENT-AGREEMENT CLAIM

We review de novo a dismissal for lack of subject-matter jurisdiction under

Federal Rule of Civil Procedure 12(b)(1). Memphis Biofuels, LLC v. Chickasaw Nation

Indus., Inc., 585 F.3d 917, 919 (6th Cir. 2009). When the district court rules on a factual

challenge to subject-matter jurisdiction, however, we review the factual findings for

clear error. Id.

At issue is whether Congress has waived sovereign immunity for breach-of-

settlement-agreement claims brought under Title VII against the federal government as

employer. “The United States, as sovereign, is immune from suit save as it consents to

be sued . . . .” United States v. Sherwood, 312 U.S. 584, 586 (1941). “The doctrine of

sovereign immunity serves as a bar to suit against the United States unless the

government has explicitly waived sovereign immunity. A waiver of sovereign immunity

must be clear, express, and unambiguous; it cannot be implied from vague language.”

United Liberty Life Ins. Co. v. Ryan, 985 F.2d 1320, 1325 (6th Cir. 1993) (internal

citations and quotation marks omitted). In the Title VII context, it is clear that Congress

has waived sovereign immunity for discrimination actions brought against the federal

government; however, we have not yet reached whether this waiver extends to breach

of a settlement agreement entered into by an employee and the federal government that

is based on an underlying discrimination claim. See Steiner v. Henderson, 354 F.3d 432,

434 (6th Cir. 2003) (“Title VII of the Civil Rights Act of 1964 . . . as amended by the

Equal Employment Opportunity Act of 1972 . . . provides the exclusive judicial remedy

for claims of discrimination in federal employment.”).

The EEOC has promulgated a regulation that squarely addresses how to report

agency noncompliance with a settlement agreement. 29 C.F.R. § 1614.504. This

regulation clearly outlines the agency procedures available to a complainant, yet it

remains silent as to whether a complainant may seek further remedies, such as appealing

No. 11-6122 Taylor v. Geithner Page 5

to federal court. Taylor and Geithner construe this silence differently; however, because

an express waiver is required in order to waive sovereign immunity, we adopt Geithner’s

position.

Under § 1614.504, a complainant must notify the agency EEO director in writing

of the alleged noncompliance, requesting either specific implementation of the

agreement or a reinstatement of the underlying complaint. Id. § 1614.504(a). If the

complainant does not receive a timely decision from the agency or is not satisfied with

the decision made by the agency, she may appeal to the EEOC. Id. § 1614.504(b).

Given this language, it is clear that a plaintiff could not bring a breach-of-settlement-

agreement claim in federal court prior to exhausting the avenues provided in § 1614.504,

and at oral argument Taylor clarified that she is not attempting to raise such a claim.

Rather, Taylor brings the breach-of-settlement-agreement claim under Title VII,

which raises the more nuanced issue as to whether a plaintiff who has exhausted her

administrative remedies may file a civil action for breach of settlement agreement in

federal court under 42 U.S.C. § 2000e-16(c).1 Geithner counters that this provision does

not apply to breach-of-settlement-agreement claims, and, even if it did apply, Taylor has

not timely filed her claim, as required by the provision. Appellee Br. at 10–13, 13 n.2.

In contending that Title VII encompasses breach-of-settlement-agreement claims, Taylor

relies on out-of-circuit cases supporting breach-of-contract claims between private

employees and employers, arguing these cases evince a legislative history that strived

to make voluntary compliance as the primary method of resolving Title VII claims.

Appellant Br. at 14–16. Geithner argues that no statute or regulation waives sovereign

immunity and relies upon Frahm v. United States, 492 F.3d 258 (4th Cir. 2007); Munoz

v. Mabus, 630 F.3d 856 (9th Cir. 2010); and Lindstrom v. United States, 510 F.3d 1191

(10th Cir. 2007). Although Taylor raises understandable concerns with such an

interpretation, we find Geithner’s arguments to be more persuasive given the specificity

1

Section 2000e-16(c) provides that an employee may file a civil action “[w]ithin 90 days of

receipt of notice of final action taken by a department, agency, or unit referred to in subsection (a) of this

section . . . if aggrieved by the final disposition of his complaint, or by the failure to take final action on

his complaint.” Section 2000e-16(a)’s prohibition on discriminatory practices includes executive agencies.

No. 11-6122 Taylor v. Geithner Page 6

with which Congress must waive sovereign immunity and the lack of such an express

waiver in the plain language of the statute and regulation.

Although focusing on different aspects of 29 C.F.R. § 1614.504 and 42 U.S.C.

§ 2000e-16(c), our sister circuits each conclude that, based on the plain language of the

regulation and the statute, Congress did not waive sovereign immunity. In Lindstrom,

the Tenth Circuit affirmed the district court’s dismissal for lack of subject-matter

jurisdiction, explaining that § 1614.504(a) does not permit federal court actions to

enforce a settlement agreement. 510 F.3d at 1194. The court determined that sovereign

immunity had not been waived given that “[t]he regulation does not authorize a suit to

enforce the settlement agreement but rather only the reinstatement of the original

discrimination complaint.” Id. Under such an interpretation, therefore, a complainant

may resolve his claims of settlement noncompliance within only the agency procedures;

the alternative remedy is to reinstate the underlying discrimination claim, which is

reviewable by a federal court.

In Munoz, the Ninth Circuit similarly held that sovereign immunity had not been

waived for breach-of-settlement-agreement claims. 630 F.3d at 864. The Ninth Circuit

concluded that because the plain language of § 1614.504 is silent regarding civil judicial

actions and because a waiver of sovereign immunity must be expressed unequivocally,

the federal courts lacked jurisdiction over this claim. Id. at 862; see also id. at 864

(“Congress, while encouraging resolution of Title VII complaints through

predetermination settlement agreements, . . . has nonetheless not provided for

enforcement of such agreements in federal court.”) (internal citations omitted). The

court further reasoned that Ҥ 1614.504 allows an employee alleging noncompliance to

choose between two exclusive remedies, namely specific performance or reinstatement

of the original discrimnation complaint.” Id. at 862. Moreover, the court explained that

under Title VII and its regulations, the right to civil appeal is based on the nature of the

underlying grievance. Id. at 863. By entering the settlement agreement, Munoz

withdrew his underlying complaint, which cannot then be the source of jurisdiction. Id.

No. 11-6122 Taylor v. Geithner Page 7

In Frahm, the Fourth Circuit concluded that Title VII’s statutory waiver of

sovereign immunity does not extend to monetary claims against the federal government

for a breach of a settlement agreement. 492 F.3d at 262. In reaching this conclusion, the

court reasoned that “[b]ecause neither the settlement agreement nor a statute allow Miss

Frahm to sue the government for breach of the settlement agreement, her action was

properly dismissed.” Id. The court further explained that the specific limitations upon

remedies for breach of settlement agreements set forth in 29 C.F.R. § 1614.504(a) serve

as additional grounds for dismissal. Id. at 262–63. Additionally, Frahm observes that

the regulation provides two remedies for breach—specific performance of the settlement

agreement or reinstatement of the original complaint. Frahm, 492 F.3d at 263 (“By its

plain language, the regulation permits an employee who claims a breach of a Title VII

settlement agreement to elect between only two options.”).

The support for Taylor’s arguments, on the other hand, is weak. In essence, she

offers only equitable and policy-based explanations as to why review of breach-of-

settlement-agreement claims by a federal court is desirable. Taylor’s arguments,

although not inaccurate, do not overcome the obstacle of sovereign immunity. If

Congress has not waived sovereign immunity, then we cannot consider the merits of a

claim. Taylor does not provide any support for her contention that Congress has waived

sovereign immunity, and she does not have an effective response to the distinction drawn

in Munoz between claims based in contract and claims based in discrimination. The

regulation does not authorize civil actions, and the final agency decision and settlement

agreement, both provided to Taylor, echoed this language. Further, nothing in 42 U.S.C.

§ 2000e-16(c) indicates that it is intended to waive sovereign immunity for claims other

than discrimination.

Taylor’s strongest argument—that such a construction of Title VII would

effectively bar federal review of breach of settlement claims—is ultimately unpersuasive

in light of the protections offered in 29 C.F.R. § 1614.504. Section 1614.504 allows a

complainant either to seek injunctive relief, i.e., specific performance of the settlement

agreement, within the agency structure or to request what is essentially an unraveling of

No. 11-6122 Taylor v. Geithner Page 8

the settlement agreement so that the complainant can pursue the underlying

discrimination claims, which can be reviewed in federal court. This is certainly not the

most direct form of judicial review of agency decisions; however, it relieves the concern

raised by Taylor that an agency could breach a contract without any consequences or

review by a federal court. Further, there is no evidence in this case that this system is

dysfunctional in any way. In fact, the evidence illustrates the opposite. Upon receiving

Taylor’s complaint, the agency investigated the allegations, confirmed the agency’s

noncompliance, and corrected the problem.

In sum, Taylor cannot point to an express waiver of sovereign immunity

concerning breach-of-settlement-agreement claims under Title VII. The regulation 29

C.F.R. § 1614.504 provides clear instructions as to the exclusive procedures by which

a complainant may seek relief—specific performance of the settlement agreement or

reinstatement of the original complaint. We therefore join our sister circuits and affirm

the district court’s dismissal of this claim for lack of subject-matter jurisdiction.

III. RETALIATION CLAIM

We review de novo a district court’s grant of summary judgment. Int’l Union v.

Cummins, Inc., 434 F.3d 478, 483 (6th Cir. 2006). We review the evidence and draw all

inferences in the light most favorable to Taylor as the nonmoving party. Id. Summary

judgment is appropriate “if the movant shows that there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a).

Title VII provides that “[a]ll 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). Additionally, Title VII

specifically proscribes retaliation, stating that it is “an unlawful employment practice for

an employer 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.” Id. § 2000e-3(a).

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A plaintiff “may prove unlawful retaliation by presenting direct evidence of such

retaliation or by establishing a prima facie case under the McDonnell Douglas

framework.” Abbott v. Crown Motor Co., 348 F.3d 537, 542 (6th Cir. 2003); see also

Spengler v. Worthington Cyclinders, 615 F.3d 481, 491–92 (6th Cir. 2010) (applying the

McDonnell Douglas framework to a retaliation claim). “The burden of establishing a

prima facie case in a retaliation action is not onerous, but one easily met.” Mickey v.

Zeidler Tool & Die Co., 516 F.3d 516, 523 (6th Cir. 2008) (internal quotation marks

omitted). Taylor does not present direct evidence of retaliation, and, therefore, she must

demonstrate by a preponderance of the evidence four elements: (1) she engaged in a

protected activity under Title VII, (2) the exercise of protected rights was known by

Shields, (3) Shields took adverse employment action against Taylor, and (4) there was

a causal connection between the adverse employment action and the protected activity.

Hunter v. Sec’y of U.S. Army, 565 F.3d 986, 995–96 (6th Cir. 2009). In their briefs, the

parties do not dispute that Taylor engaged in protected activity2 or that Shields was

aware of Taylor’s engagement in these activities.3

In order to establish an adverse employment action, Taylor “must show that a

reasonable employee would have found the challenged action materially adverse, which

in this context means it well might have dissuaded a reasonable worker from making or

supporting a charge of discrimination.” Garner v. Cuyahoga Cnty. Juvenile Court,

554 F.3d 624, 639 (6th Cir. 2009) (internal quotation marks omitted). “The

antiretaliation provision protects an individual not from all retaliation, but from

retaliation that produces an injury or harm.” Burlington N. & Santa Fe Ry. Co. v. White,

548 U.S. 53, 67 (2006). Further, the Supreme Court has recognized that actions typically

construed as nonmaterial could rise to the level of an adverse employment action when

2

The protected activity includes the complaints discussed with respect to the breach of settlement

agreement, as well as the EEO complaint filed on June 25, 2004, alleging discrimination based on age,

race, sex, religion, physical or mental disability, and retaliation; and the complaint to the Department of

the Treasury on September 3, 2004, alleging discrimination on the same bases, as well as retaliation for

the June 25, 2004 complaint. R. 63-10 (Individual Compl. of Employment Discrimination at 1–2) (Page

ID #570–71); R. 63-11 (Individual Compl. of Employment Discrimination at 1–2) (Page ID # 575–76).

3

At oral argument, Geithner appeared to dispute whether Shields knew of the activity. This was

improper, given the concession in his brief. Appellee Br. at 16–17.

No. 11-6122 Taylor v. Geithner Page 10

considered in context, such as a change in the work schedule of a young mother with

children in school. Id. at 69 (“The real social impact of workplace behavior often

depends on a constellation of surrounding circumstances, expectations, and relationships

which are not fully captured by a simple recitation of the words used or the physical acts

performed.”).

In her opposition brief to Geithner’s motion for summary judgment, Taylor

argued that the following actions constituted adverse employment actions: Shields’s

initial refusal to provide Taylor a recommendation letter for the Presidential Classroom

Program, Shields’s negative reference given to an employee of Documented Reference

Check (“DRC”), Taylor’s unsuccessful applications to fifty-two positions within the

IRS, and the failure to remove the record of her three-day suspension from her personnel

records at OPM. R. 63 (Pl.’s Opp’n to Def.’s Mot. at 18) (Page ID #531). Taylor

identified additional actions in the portion of her opposition brief arguing the causal

connection between the filing of her complaints and the adverse employment actions,

including two written reprimands and the three-day suspension. Id. at 19–21 (Page ID

#532–34). The district court concluded that only the three-day suspension was an

adverse employment action. Taylor, 2011 WL 2669061, at *14.

Many of these alleged actions are based on inadmissible or unauthenticated

evidence or do not qualify as adverse actions. The December 1, 2005 email received by

Taylor from Shields, for example, does not by itself constitute an adverse employment

action. The email states:

Sheryl I have not received confirmation that the IRS will participate in

the Presidential Classroom Program. There are no approvals for travel

unless Mission Critical for IRS (SB/SE). I will not provide a letter of

recommendation because in my observation you have not demonstrated

the skills needed to participate in this program. My concerns are your

ability to effectively communicate your meet and deal skills and your

interrelationship skills that I deem necessary for this type of assignment.

R.53-1 (Email at 1) (Page ID #442). The following day, Shields retracted this statement

and sent a recommendation to the Presidential Classroom Program on behalf of Taylor.

Given these subsequent events, it is unclear how Taylor was harmed by this letter and

No. 11-6122 Taylor v. Geithner Page 11

why it would have dissuaded her from filing discrimination complaints. Unlike with the

fifty-two rejections, Taylor makes no serious argument in support of this being an

adverse action, and there is affirmative evidence that she was not actually harmed.

Therefore, Taylor has not shown that this email, in and of itself, is an adverse

employment action.

Further, the DRC transcript4 cannot be considered because it was unauthenticated

at the time of the district court’s initial order. Taylor did not attempt to authenticate this

document until her Rule 59(e) motion, in which she provided the testimony of Michael

Ranking, the chief service officer of DRC, from the EEO hearing. R. 94-2 (Rankin Tr.

at 191–92) (Page ID #804–05). Taylor does not respond to Geithner’s objection, nor

does she indicate that the testimony was, in fact, filed on the docket prior to or in

conjunction with her opposition brief to Geithner’s motion for summary judgment. See

Huff v. Metropolitan Life Ins. Co., 675 F.2d 119, 123 (6th Cir. 1982) (“However, we find

no abuse of discretion in the district court’s determination that the evidence would not

be considered because it was not newly discovered . . . .”). Taylor therefore cannot rely

upon this evidence. See Fed. R. Civ. P. 59(e).

Taylor’s statement in her declaration that she unsuccessfully applied for fifty-two

positions within the IRS can be considered. Taylor avers that “[b]ased on documents

that I had in my possession and based on documents that I received in discovery in this

case, I have identified 52 positions in the [IRS] for which I submitted unsuccessful

transfer or promotion applications after January 1, 2004.” R. 63-9 (Taylor Decl. ¶ 13)

(Page ID #567). Taylor attempts to supplement this declaration with four IRS Roster

Standing Notifications from August 2005 verifying receipt of her application and

indicating her standing as first among applicants in each applicant pool. R. 94-1 (Roster

Standing Notifications) (Page ID #798–801). For the same reasons discussed in

conjunction with the DRC transcript, though, these documents cannot be considered.

4

When called by DRC, a company hired by Taylor to perform fake reference checks, Shields

stated she would not hire Taylor if she were a potential employer and elaborated on Taylor’s interpersonal

deficiencies. R. 63-12 (DRC Transcript at 3–4) (Page ID #581–82).

No. 11-6122 Taylor v. Geithner Page 12

Taylor did not present these to the district court until her Rule 59(e) motion and has not

offered any explanation curing this deficiency.

The three-day suspension is well documented in this action, but it is inadmissible

for purposes of showing retaliation. See also R. 63-2 (Acklin Letter) (Page ID #544–45)

(sustaining the implementation of Taylor’s three-day suspension). Although neither

party raised this issue, it is important to note that the three-day suspension was not

reviewed by the EEOC in its decision. R. 53-1 (EEOC Decision) (Page ID #472–85).5

Geithner makes a different argument in his brief, that Taylor waived her right to bring

a substantive claim based on the three-day suspension when she signed the settlement

agreement with the IRS. Appellee Br. at 23–25. On either basis, this evidence cannot

be considered on the retaliation claim.

Taylor also provides the two reprimands, one of which, dated September 27,

2004, documents an incident in which Taylor contacted upper management in lieu of

following the chain of command, and the other, dated April 20, 2005, details an incident

in which Taylor was observed using her cellular phone in the work area. R. 63-3

(Shields Email at 1) (Page ID #547); R. 63-4 (Cellular Phones Letter at 1) (Page ID

#549). Each of these documents warned that further incidents of this nature could lead

to disciplinary action. R. 63-3 (Shields Email at 1) (Page ID #547); R. 63-4 (Cellular

Phones Letter at 1) (Page ID #549). We may consider these documents; however,

neither of these amounts to an adverse employment action. See, e.g., Creggett v.

Jefferson Cnty. Bd. of Educ., No. 11-6375, 2012 WL 3104508, at *3 (6th Cir. Aug. 1,

2012) (“A written reprimand, without evidence that it led to a materially adverse

consequence such as lowered pay, demotion, suspension, or the like, is not a materially

adverse employment action.”). Although certain written reprimands could rise to the

level of an adverse employment action, the written reprimands given here would not

have dissuaded a reasonable worker from making a claim of discrimination. There is no

5

Taylor filed this civil action within ninety days of the EEOC decision, as required under 42

U.S.C. § 2000e-16(a). This decision is rarely referenced in the parties’ briefs and the district court order.

The EEOC concluded that Taylor failed to show that she was subjected to retaliation. R. 53-1 (EEOC

Decision at 13) (Page ID #483).

No. 11-6122 Taylor v. Geithner Page 13

evidence in the record that any disciplinary action resulted from these letters, or that

these letters were related to a larger pattern of intimidation by constantly reprimanding

Taylor, for example.

The admissible documents constitute sufficient evidence to support Taylor’s

prima facie case. To begin, Taylor’s averment that she applied for and was rejected from

fifty-two positions is plainly an adverse employment action under binding precedent.

See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998) (“A tangible

employment action constitutes a significant change in employment status, such as hiring,

firing, failing to promote, reassignment with significantly different responsibilities, or

a decision causing a significant change in benefits.”); Hunter, 565 F.3d at 994 (listing

“termination, failure to promote, denial of transfer, or refusal to hire” as discrete acts

under Title VII) (internal quotation marks omitted).

Additionally, we have held that giving a poor reference is an adverse

employment action. Abbott, 348 F.3d at 543. Geithner argues that Abbott is

distinguishable from this case. He contends that unlike in Abbott, there is no direct

evidence of Shields having given a poor reference regarding one of the positions from

which Taylor was rejected. This argument is unconvincing; as discussed above,

circumstantial evidence is sufficient to establish a prima facie case under the McDonnell

Douglas framework. Taylor has presented evidence demonstrating that she applied for

and was rejected from fifty-two positions within the IRS and that, during the same time

period, Shields gave Taylor a negative reference for the Presidential Classroom Program.

Geithner also attempts to distinguish this case by providing evidence that Shields

subsequently gave positive reviews of Taylor in their internal review program.

However, the fact that Shields gave Taylor positive reviews in certain instances does not

negate the evidence of a negative review. Moreover, to the extent that this merges into

evidence of a nondiscriminatory reason, it would be inappropriate to address such

evidence at this stage: “[A] court may not consider the employer’s alleged

nondiscriminatory reason for taking an adverse employment action when analyzing the

prima facie case.” Wexler v. White’s Fine Furniture, Inc., 317 F.3d 564, 574 (6th Cir.

No. 11-6122 Taylor v. Geithner Page 14

2003) (en banc). In sum, Taylor presents enough to satisfy the low prima facie evidence

burden with respect to both.

In order to establish a causal connection, Taylor “must produce sufficient

evidence from which one could draw an inference that the employer would not have

taken the adverse action against the plaintiff had the plaintiff not engaged in activity that

Title VII protects.” Abbott, 348 F.3d at 543. “Accordingly, at the prima facie stage the

burden is minimal, requiring the plaintiff to put forth some evidence to deduce a causal

connection between the retaliatory action and the protected activity and requiring the

court to draw reasonable inferences from that evidence, providing it is credible.”

Nguyen, 229 F.3d at 566 (internal quotation marks omitted). One way by which a

plaintiff can demonstrate a causal connection is to show close temporal proximity

between the adverse employment actions and the protected activity. Upshaw v. Ford

Motor Co., 576 F.3d 576, 588 (6th Cir. 2009). Although Geithner argues more than

temporal proximity is required, we have held that more evidence is required only when

some time has passed. Mickey v. Zeidler Tool & Die Co., 516 F.3d 516, 525 (6th Cir.

2008). In other words, if there is a very close temporal proximity, then no other

evidence is needed.

Taylor applied for and was rejected from fifty-two jobs during the same two-year

period as when she engaged in protected activity by filing several discrimination

complaints. Although we do not have the exact dates on which she applied for each of

these jobs, the numbers allow us to assume that she applied for an average of at least two

positions per month during the same time period in which she filed three discrimination

complaints. There is therefore a complete temporal overlap in the rejection from these

positions and the protected activity, which satisfies the standard we set forth in Mickey.

Further, any negative reference given by Shields to one of these prospective employers

would necessarily be nearly contemporaneous with Taylor’s application for the position.

In other words, the temporal proximity analyses for both the rejections from the fifty-two

position and any negative references given in connection with the fifty-two applications

do not differ. Additionally, assessing the temporal proximity based solely on the date

No. 11-6122 Taylor v. Geithner Page 15

of the email would be simplistic and incorrect. The facts show that at the same time and

shortly after Taylor filed discrimination-based complaints with the agency, she was

rejected from fifty-two positions within the same agency and, when requesting a

recommendation from her unit supervisor, was given a negative reference. This is

sufficient to establish a prima facie case under the McDonnell Douglas burden-shifting

analysis, which is the sole issue before us. We therefore reverse the district court’s grant

of summary judgment on the retaliation claim.

IV. CONCLUSION

For the reasons stated, we AFFIRM the district court’s dismissal of Taylor’s

breach-of-settlement-agreement claim and REVERSE the district court’s grant of

summary judgment to Geithner on Taylor’s retaliation claim. We REMAND for further

proceedings consistent with this opinion.

No. 11-6122 Taylor v. Geithner Page 16

_________________________________________________

CONCURRING IN PART AND DISSENTING IN PART

_________________________________________________

McKEAGUE, Circuit Judge. I agree with the majority that Congress has not

expressly waived sovereign immunity for breach-of-settlement-agreement claims and

that we should affirm the district court on that issue. However, because Taylor has not

brought sufficient evidence that she suffered an adverse action or that any adverse action

was causally linked to her protected activities, I would also affirm the district court’s

grant of summary judgment as to Taylor’s retaliation claim.

I.

A.

While the majority correctly states that summary judgment is proper if there are

no genuine issues of material fact and the moving party is entitled to judgment as a

matter of law, FED.R.CIV.P. 56(c), and that we consider the evidence in the light most

favorable to the nonmoving party and draw all reasonable inferences in that party's favor,

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986), for an issue of fact to be

genuine, the nonmovant must do more than simply show that there is some metaphysical

doubt as to the material facts. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp.,

475 US 574, 586-587 (1986). In this case, Taylor has not carried that burden.

As the majority notes, the only elements of the prima facie case at issue here are

whether there was an adverse action taken against Taylor and whether Taylor established

a causal link between any adverse action and her protected activity. The majority

concludes that there were two adverse actions here: (1) “Taylor’s averment that she

applied for and was rejected from fifty-two positions,” and (2) an imaginary negative

recommendation from Taylor’s supervisor for one of those 52 positions.

In a retaliation claim, an adverse employment action is one that “well might have

dissuaded a reasonable worker from making or supporting a charge of discrimination.”

Garner v. Cuyahoga Cnty. Juvenile Court, 554 F.3d 624, 639 (6th Cir. 2009). “The

No. 11-6122 Taylor v. Geithner Page 17

antiretaliation provision protects an individual not from all retaliation, but from

retaliation that produces an injury or harm.” Burlington N. and Santa Fe Ry. Co. v.

White, 548 U.S. 53, 67 (2006). It is not at all clear how either of the adverse actions

found by the majority here satisfies these requirements.

B.

With respect to the 52 applications, Taylor’s declaration filed in her response to

Geithner’s motion for summary judgment ambiguously states, “I have identified

52 positions in the Internal Revenue Service . . . for which I submitted unsuccessful

transfer or promotion applications after January 1, 2004.” The majority mischaracterizes

Taylor’s statement to mean that “she applied for and was rejected” from those positions.

But that is not what Taylor stated. The fact that Taylor was “unsuccessful” in her

applications could mean any number of things, including that her application was

untimely, or she was not qualified for the position, or that the position had already been

filled.

Notwithstanding this misconstruction of Taylor’s non-specific declaration, the

majority rightly notes that apart from Taylor’s own self-serving statement, she has not

adduced any admissible evidence regarding the timing of the alleged applications,

whether she was even qualified for the jobs she applied for, whether the jobs were

promotions or offered some other material benefit to Taylor, or whether in fact she really

was rejected. Taylor tried to supplement her declaration with four Roster Standing

Notifications from four different jobs she applied for, but the majority admits we are not

even considering those documents here because they were not presented to the district

court until Taylor filed her motion for reconsideration.

Despite this acknowledgment by the majority that Taylor’s claims are completely

unsubstantiated, the majority still concludes that “Taylor’s averment that she applied for

and was rejected from fifty-two positions is plainly an adverse employment action under

binding precedent.” Ante (citing Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761

(1998)). In Burlington Industries, the Supreme Court explained what a “tangible

employment action” was for purposes of Title VII harassment or discrimination claims.

No. 11-6122 Taylor v. Geithner Page 18

In doing so, it offered the quote that the majority now employs stating that such an action

“constitutes a significant change in employment status, such as hiring, firing, failing to

promote, reassignment with significantly different responsibilities, or a decision causing

a significant change in benefits.” Id. at 761. But the Court cited several other cases in

an effort to more fully define “tangible employment action”:

Compare Crady v. Liberty Nat. Bank & Trust Co. of Ind., 993 F.2d 132,

136 (C.A.7 1993) (“A materially adverse change might be indicated by

a termination of employment, a demotion evidenced by a decrease in

wage or salary, a less distinguished title, a material loss of benefits,

significantly diminished material responsibilities, or other indices that

might be unique to a particular situation”), with Flaherty v. Gas

Research Institute, 31 F.3d 451, 456 (C.A.7 1994) (a “bruised ego” is not

enough), Kocsis v. Multi-Care Management, Inc., 97 F.3d 876, 887

(C.A.6 1996) (demotion without change in pay, benefits, duties, or

prestige insufficient), and Harlston v. McDonnell Douglas Corp., 37 F.3d

379, 382 (C.A.8 1994) (reassignment to more inconvenient job

insufficient).

Burlington Indus., Inc., 524 U.S. at 761.

The Court clearly thought that in order for an action to constitute a “tangible

employment action” there needed to be some evidence that the action was adverse, i.e.,

that it needed to be a termination, a demotion with evidence of lost wages, lost benefits,

and so forth.

There is nothing in this definition that supports the majority’s conclusion here

that Taylor’s own self-serving statement, unsubstantiated by any evidence that she was

(1) qualified for any of the 52 jobs she applied for; (2) lost wages as a result of being

“unsuccessful” in her applications; (3) lost any material benefits; (4) had her

responsibilities diminished; or (5) lost a promotion opportunity, is sufficient to be an

adverse employment action. See Hunter v. Sec’y of U.S. Army, 565 F.3d 986, 996

(6th Cir. 2009) (“Hunter has not alleged that being transferred to a new work unit

resulted in significantly different responsibilities, a change in benefits, or any other

negative effect. In other words, Hunter has not shown that the transfer resulted in the

type of ‘injury or harm’ that the Supreme Court in Burlington Northern said was

No. 11-6122 Taylor v. Geithner Page 19

necessary to sustain an action under Title VII.”); Freeman v. Potter, 200 F. App’x 439,

442-43 (6th Cir. 2006) (recognizing that an adverse action usually “inflicts direct

economic harm” on the plaintiff) (quoting Burlington Indus., Inc., 524 U.S. at 761).

Further, the Supreme Court has clearly recognized the problems with relying on

a plaintiff’s self-serving subjective belief that she has suffered an adverse action.

See Burlington N. & Santa Fe Ry. Co., 548 U.S. at 68-69 (holding that the adverse action

inquiry is an objective one thus, avoiding “the uncertainties and unfair discrepancies that

can plague a judicial effort to determine a plaintiff's unusual subjective feelings.”);

Mitchell v. Vanderbilt Univ., 389 F.3d 177, 183 (6th Cir. 2004) (asserting that an

individual’s “subjective impression concerning the desirability of one position over

another” is insufficient to render an employer’s action materially adverse.); Freeman,

200 F. App’x at 442-43 (same).

Accordingly, Taylor’s non-specific and unsubstantiated assertion that she

unsuccessfully applied for 52 positions is insufficient to constitute an adverse action.

Applying these same principles, the majority’s conclusion that Taylor suffered

an adverse action because her employer might have given her a negative reference is also

untenable. Initially, Taylor alleged that she suffered an adverse action based on her

supervisor’s email stating she would not recommend Taylor for an IRS program. Later

that same day, however, her supervisor retracted the email and sent a positive

recommendation on Taylor’s behalf. (R.53-1, Page ID # 441-43). The majority admits

that this is not an adverse action because “it is unclear how Taylor was harmed by this

letter and why it would have dissuaded her from filing discrimination complaints.” Yet,

the majority ultimately uses this email to infer that at some prior indeterminate point,

during which Taylor was allegedly being “rejected” for the 52 positions, her supervisor

was asked for a recommendation and gave her a negative reference. But there is

absolutely no admissible evidence either occurred.

Moreover, even if circumstantial evidence is sufficient to conclude Taylor’s

supervisor gave her negative reference at some prior indeterminate point, certainly in

order to show she was harmed by that alleged reference Taylor would be required to

No. 11-6122 Taylor v. Geithner Page 20

establish that it related to an actual employment prospect. See Abbott v. Crown Motor

Co., 348 F.3d 537, 541 (6th Cir. 2003) (“Crown conceded that Morrison had informed

a potential employer that he had terminated plaintiff ‘during the busy season’ and that

plaintiff ‘was not eligible for rehire.’”). But as discussed above, the only evidence here

that there were real employment prospects is Taylor’s self-serving non-specific

declaration.

Thus, even considering the evidence in the light most favorable to Taylor, the

majority’s inference that Taylor’s supervisor gave her a negative reference at some point

between July 2004 and September 2006, is nothing more than unsupported speculation,

and does not establish there is a triable question of fact. Matsushita Elec. Indus. Co.,

Ltd., 475 US at 586-587.

C.

The majority’s causation analysis is even more tenuous. “To establish a causal

connection, a plaintiff must proffer evidence sufficient to raise the inference that her

protected activity was the likely reason for the adverse action.” Michael v. Caterpillar

Fin. Servs. Corp., 496 F.3d 584, 596 (6th Cir. 2007) (quotation marks omitted). The

majority correctly notes that in some instances temporal proximity between the protected

activity and the adverse action may satisfy the causation prong of the prima facie test.

Mickey v. Zeidler Tool and Die Co., 516 F.3d 516, 523-26 (6th Cir. 2008).

At the summary judgment stage, we are to draw “reasonable inferences” from the

available evidence. Anderson, 477 U.S. at 255. Here, the majority takes Taylor’s

unsupported statement that she was denied 52 positions between January 2004 and

September 2006 and extrapolates from that assertion, but without any supporting

evidence, that Taylor must have been denied jobs at the rate of two per month. The

majority next infers that because she was denied two jobs per month, she must have been

denied jobs at the same time she filed her complaints to the EEO and Department of the

Treasury in June 2004, September 2004, and April 2005. After making these multiple

inferential leaps, the majority confidently concludes there was “a complete temporal

overlap in the rejection from these positions and the protected activity.”

No. 11-6122 Taylor v. Geithner Page 21

This same reasoning leads the majority to conclude that Taylor’s supervisor’s

putative negative reference would also be “nearly contemporaneous with Taylor’s

application” for any one of the 52 positions. Based on the evidence here—Taylor’s

unsupported claim that she was denied 52 jobs and her supervisor’s email—these are not

reasonable inferences supporting a conclusion that Taylor’s protected activity was the

likely reason for the adverse action. Michael, 496 F.3d at 596.

We have previously supported temporal proximity as a basis for establishing

causation. See, e.g., Mickey, 516 F.3d at 525 (“Where an adverse employment action

occurs very close in time after an employer learns of a protected activity, such temporal

proximity between the events is significant enough to constitute evidence of a causal

connection for the purposes of satisfying a prima facie case of retaliation.”). Taylor has

not cited any case, and the majority points to none, where temporal proximity was

deemed adequately established based on a speculative averaging of wholly unsupported

claims of multiple adverse actions. In other words, the majority’s reasoning on this issue

is supported neither by evidence nor law, and thus I respectfully dissent as to Taylor’s

retaliation claim.