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.