Taylor v. Solis

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 14, 2008 Decided July 10, 2009

No. 07-5401

RUBY TAYLOR,
APPELLANT

v.

HILDA L. SOLIS, SECRETARY OF LABOR, ET AL.,
APPELLEES

Appeal from the United States District Court
for the District of Columbia
(No. 03cv01761)

Richard L. Swick argued the cause for appellant. On the
briefs were David H. Shapiro and Alana M. Hecht.

Kenneth Adebonojo, Assistant U.S. Attorney, argued the
cause for appellees. With him on the brief were Jeffrey A.
Taylor, U.S. Attorney, R. Craig Lawrence, Assistant U.S.
Attorney, and Judith R. Starr, Counsel, Pension Benefit
Guaranty Corporation.

Before: GINSBURG, HENDERSON and ROGERS, Circuit
Judges.

Opinion for the Court filed by Circuit Judge GINSBURG.
 2

Dissenting opinion filed by Circuit Judge ROGERS.

GINSBURG, Circuit Judge: Ruby Taylor, an African-
American woman, sued her employer, the Pension Benefit
Guaranty Corporation, under Title VII of the Civil Rights Act
of 1964, claiming her supervisors sexually harassed her to the
point of creating a hostile work environment and, when she
complained, retaliated against her. The district court granted
summary judgment to the Corporation because it concluded,
as a matter of law, (1) the employer had an affirmative
defense to Taylor’s claim of sexual harassment and, (2) with
regard to retaliation, Taylor (a) had not offered a prima facie
showing that her protected activity caused most of the alleged
acts of retaliation, (b) had failed to show one such act was a
materially adverse action, and (c) had failed to rebut the
Corporation’s nondiscriminatory explanation of another. We
affirm, holding as a matter of law that the PBGC has an
affirmative defense to the claim of sexual harassment and that
Taylor has failed to meet her burden regarding the claim of
retaliation.

I. Background

We accept as true the evidence offered by, and draw all
reasonable inferences in favor of, Taylor, who at all relevant
times was an auditor in the Pre-Termination Process Division
(PPD) of the PBGC.* Taylor’s direct supervisor was Jonathan
Henkel, who oversaw all the auditors in the PPD. Robert
Bacon oversaw all the financial analysts in the PPD. Bacon
and Henkel reported to Robert Joy, the manager of the PPD,

*
The PBGC is a nonprofit corporation “established within the
Department of Labor,” 29 U.S.C. § 1302(a), and the Secretary of
Labor is the Chairman of its Board of Directors, id. § 1302(d).
 3
who reported to Bennie Hagans, Director of the Insurance
Operations Department (IOD).

The Corporation’s policy against sexual harassment
directs employees who believe they have been sexually
harassed “immediately [to] contact an EEO Counselor or the
EEO Manager,” who is to investigate the charge of
harassment and, if warranted, implement an appropriate
remedy. The policy also states the “PBGC’s managers and
supervisors have a particular responsibility for providing a
work environment free of ... sexual harassment.”

Taylor alleges her supervisors created a sexually charged
atmosphere at the PPD. Henkel, Joy, and Hagans
occasionally flirted with female employees, but particularly
offensive to Taylor was a summer 2001 scavenger hunt,
undertaken as a “team building exercise,” during which, in
order to earn points for a “wow,” a female coworker produced
a yellow brassiere from her gym bag, and a male coworker
asked Taylor, who had red hair, if her hair was red “all over.”
Bacon and Henkel awarded Taylor’s team bonus points for
what Henkel referred to as this “embarrassing moment.”

According to Taylor, Bacon began in 2001 to engage in
frequent acts of harassment. Although Taylor and Bacon had
been running partners for nearly a year, Taylor stopped
running with him in the summer of 2001 because she felt he
had overstepped the bounds of a professional relationship. In
October Bacon told Taylor he could persuade Henkel to give
her a good performance evaluation. When Henkel did so,
Bacon asked her, “what are you going to do for me?” Around
the same time, Taylor posted on her office door an October 2,
2001 e-mail detailing the Corporation’s policy concerning
sexual harassment. In or before November Bacon began
intimating Taylor was not in love with her fiancé, saying he
 4
could beat him up. Taylor confided in her friend, David
Smith, a team leader in the IOD, that she felt harassed; he did
not advise her to go to the EEO Counselor, nor did he do so
himself.

Also in 2001 Taylor confronted Bacon and threatened to
report him if he did not stop sexually harassing her. Bacon
said that because he was a “nice guy,” everyone “would think
... [she was] the problem.” On April 3, 2002 Bacon saw
Taylor in the hall and, referring to her uncovered arms, said,
“I see you flaunting that black.” The next day, when Bacon
entered her office, Taylor kept her back to him; Bacon asked
repeatedly, “what did I tell you about turning your back to me
when I’m talking to you,” which Taylor ascribed to a desire
on his part to “see my legs or chest.” A day later Bacon,
finding Taylor alone in the copy room, walked toward her
with his hands raised as if, in her view, he was preparing to
choke her. When she protested, he did not touch her, but he
called her “baby” and said he would touch her if he wanted.

Taylor reported Bacon’s conduct on April 9, 2002. She
first filed a complaint with the PBGC’s internal investigator,
who did not find a violation of the Corporation’s policy.
When her complaint to the EEO office had proved unavailing,
she brought this suit in the district court on August 19, 2003.

Taylor alleges her supervisors retaliated against her in
response to her complaint and her lawsuit. In 2002 Hagans
criticized her “negative behaviors.” Joy and Henkel, who had
evaluated her job performance as “Outstanding” in 2001,
rated her work “Excellent” in 2002 and “Fully Effective” in
2003, and in the third quarter of 2003 required her to submit
biweekly reports of her progress on pending cases. In
November 2003, after Taylor had submitted a confusing
request for leave, Henkel, at the direction of the Human
 5
Resources Department, listed Taylor as AWOL. (The listing
was later rescinded and Taylor received back pay.) Finally, in
2004 Joy refused to recommend Taylor for a new position the
PBGC considered creating but ultimately did not create.
Taylor filed a second EEO complaint on February 5, 2004
and a second lawsuit on April 22, 2005, claiming continued
harassment and retaliation.

The district court consolidated Taylor’s lawsuits and
granted the PBGC’s motion for summary judgment. See
Taylor v. Chao, 516 F. Supp. 2d 128, 130 (2007). With
respect to Taylor’s claim of sexual harassment, the court held
the Corporation’s anti-harassment policy and complaint
procedure together with Taylor’s delay in reporting Bacon
provided, as a matter of law, an affirmative defense. Id. at
134–35. In the alternative, the court held Taylor had not
shown a reasonable jury could find her supervisors’ conduct
created a hostile environment. Id. at 135–37. As for
retaliation, the court concluded, with respect to most of
Taylor’s claims, she had not produced prima facie evidence
showing her filing the April 2002 complaint caused her
supervisors to retaliate against her. Id. at 138. The court also
held Hagans’s criticism of Taylor’s “negative behaviors” was
not a “materially adverse act.” Id. at 137–38. Finally, the
court held Taylor had made out a prima facie case of
retaliation with respect to the performance evaluation she
received in 2002 but had failed to rebut the PBGC’s
legitimate explanation for that evaluation. Id. at 138–39.

II. Analysis

We review the judgment of the district court de novo.
See Venetian Casino Resort, L.L.C. v. EEOC, 530 F.3d 925,
929 (D.C. Cir. 2008). We begin with Taylor’s claim of
sexual harassment and then turn to her claim of retaliation.
 6

A. Sexual Harassment

Title VII provides: “All personnel actions affecting
employees ... in executive agencies ... shall be made free from
any discrimination based on ... sex,” 42 U.S.C. § 2000e-16(a),
and thus makes it unlawful for a supervisor in a covered
federal agency to create a hostile environment based upon an
employee’s sex. See Bundy v. Jackson, 641 F.2d 934, 944–46
(D.C. Cir. 1981). Sexual harassment creates a hostile
environment only if it is so “severe or pervasive [as] to alter
the conditions of [the victim’s] employment and create an
abusive working environment.” Meritor Sav. Bank v. Vinson,
477 U.S. 57, 67 (1986). The employer has an affirmative
defense to a hostile environment claim if (1) the employer
“exercised reasonable care to prevent and correct promptly
any sexually harassing behavior” and (2) “the plaintiff
employee unreasonably failed to take advantage of any
preventive or corrective opportunities provided by the
employer or to avoid harm otherwise.” Faragher v. City of
Boca Raton, 524 U.S. 775, 807 (1998); see also Burlington
Indus. v. Ellerth, 524 U.S. 742, 765 (1998).

The PBGC argues Taylor was not subjected to a hostile
work environment and, in any event, the district court
correctly held the employer had an affirmative defense
because Taylor unreasonably failed to use its complaint
procedure. See Ellerth, 524 U.S. at 765 (“any unreasonable
failure to use any complaint procedure provided by the
employer ... will normally suffice to satisfy the employer’s
burden”). Taylor does not challenge the adequacy of the
Corporation’s procedure. Therefore, the PBGC may avoid
liability if it shows “that, as a matter of law, a reasonable
person in [Taylor’s] place would have come forward early
enough to prevent [the] harassment from becoming ‘severe or
 7
pervasive.’” Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir.
1999).

We agree with the district court and the PBGC that a
reasonable employee in Taylor’s position would have come
forward in October or November 2001, when Taylor instead
posted the PBGC’s sexual harassment policy on her office
door and told her friend Smith that Bacon had been sexually
harassing her. A reasonable employee who believes and tells
others she is being sexually harassed would report it if she
knows — as Taylor should have and apparently did know —
a complaint procedure has been established for that purpose.*
When Taylor finally did report Bacon’s conduct in April
2002, the PBGC duly investigated and, even though it did not
find harassment, see Baskerville v. Culligan Int’l Co., 50 F.3d
428, 430 (7th Cir. 1995) (occasional vulgar banter not sexual
harassment), the sort of conduct about which Taylor had
complained did not recur.

Taylor argues she effectively notified the PBGC’s
management of her complaint in the fall of 2001 when she
confided in her friend Smith. Taylor, however, could not
reasonably have believed talking to Smith was a substitute for
using the agency’s complaint procedure. Although Smith, as

*
The dissent deems it “irrelevant” “[w]hether Taylor herself
believed she was being sexually harassed,” Dissenting op. at 9, and
suggests the court is “placing a more stringent reporting
requirement on a more sensitive plaintiff,” id. at 8. A plaintiff who
knows about her employer’s complaint procedure and fails to use it
even as she tells a manager she is being harassed runs head long
into the prophylactic rule announced in Faragher, which was not
designed to protect sensitive employees, but rather to encourage all
employees to “avoid[] harm” when doing so is possible, and to
ensure a plaintiff is not “reward[ed] … for what her own efforts
could have avoided.” 524 U.S. at 806–07.
 8
a member of management, may have had, as the policy states,
a “particular responsibility” to address workplace
discrimination, he was neither Bacon’s supervisor nor an
EEO officer. The policy expressly required Taylor, if she
believed she was being harassed, “immediately [to] contact an
EEO Counselor or the EEO Manager.” Having ignored the
complaint procedure, Taylor cannot now complain that Smith
should have filed a formal complaint on her behalf or himself
reprimanded Bacon, who did not report to him.

Taylor also argues her report to Smith was sufficient in
the light of Bundy, in which we held an employer vicariously
liable for its supervisors’ harassment of a subordinate. In
Bundy, however, the employer, unlike the PBGC, had not
established a sexual harassment policy with a complaint
procedure. See 641 F.2d at 943, 947–48.

Taylor argues in the alternative that her delay in filing a
complaint, from the fall of 2001 to April 2002, was not
unreasonable. But, as the PBGC points out, an employee has
a “prompt reporting duty under the prophylactic rules”
approved in Faragher, and five or six months is “anything but
prompt.” Baldwin v. Blue Cross/Blue Shield of Ala., 480 F.3d
1287, 1306–07 (11th Cir. 2007) (three months and two weeks
held an unreasonable delay). In reply Taylor notes a failure to
complain may be reasonable in unusual circumstances, such
as a “genuine [and] reasonable .... fear of retaliation.” Adams
v. O’Reilly Auto., Inc., 538 F.3d 926, 932–33 (8th Cir. 2008)
(“fear of retaliation” generally not an excuse for failing to
report sexual harassment); see also Roebuck v. Washington,
408 F.3d 790, 795 (D.C. Cir. 2005) (“fear and uncertainty”
about scope of employer’s policy may in certain
circumstances make employee’s “delay in complaining
reasonable”).
 9
Taylor suggests various “factors” show her delay was
reasonable but only one warrants mention. According to
Taylor’s first EEO complaint, Bacon told her in 2001 “no one
would believe” her if she reported him; “they would think ...
[she was] the problem.” A reasonable jury could not find
Taylor was reasonably deterred by Bacon’s statement. Bacon
did not threaten Taylor with an adverse employment action
and, indeed, he could not have done because he was not her
supervisor and did not have the authority to evaluate her
performance or to take any action against her. In fact, Bacon
had no leverage at all with which to intimidate Taylor —
apart from his assertion that those in authority would believe
him and not her. And that is not enough to establish a
credible fear of retaliation. See Barrett v. Applied Radiant
Energy Corp., 240 F.3d 262, 267 (4th Cir. 2001) (rejecting as
“speculative” and “generalized” employee’s fear of retaliation
based upon alleged friendship between president of
corporation and alleged harasser, her supervisor); id. at 268
(rejecting view that “friendships should relieve an employee
of her reporting obligation and effectively impose automatic
liability on the employer”). Because “failure [would have
been] the only cost” to Taylor of reporting Bacon in the fall of
2001, see Reed v. MBNA Mktg. Sys., 333 F.3d 27, 36 (1st Cir.
2003); see also Walton v. Johnson & Johnson Servs., 347
F.3d 1272, 1290–91 (11th Cir. 2003) (absent credible threat
of retaliation, subjective fear of reprisal not an excuse for
failure to report), no reasonable jury could find Taylor
reasonably waited five or six months before reporting what
she believed was sexual harassment.* We therefore affirm the
*
Roebuck, which involved repeated harassment by and a threat
from the employee’s supervisor, is not to the contrary. See 408
F.3d at 791–92; Dissenting op. at 3 (noting that employee in
Roebuck “alleged her supervisor ... had sexually harassed her”).
Bacon had no supervisory authority over Taylor. In Roebuck,
moreover, the question was whether “fear and uncertainty made
 10
district court’s judgment with respect to Taylor’s first cause
of action.

B. Retaliation

Under Title VII, it is unlawful for an employer “to
discriminate against any of [its] employees ... because [she]
has made a charge ... or participated in any manner in an
investigation” of discrimination. 42 U.S.C. § 2000e-3(a); see
Rochon v. Gonzales, 438 F.3d 1211, 1219 (D.C. Cir. 2006)
(“general ban on retaliation in § 2000e-3(a)” applies to
federal employers through § 2000e-16). In order to prevail
upon a claim of unlawful retaliation, an employee must show
“she engaged in protected activity, as a consequence of which
her employer took a materially adverse action against her.”
Weber v. Battista, 494 F.3d 179, 184 (D.C. Cir. 2007). A
materially adverse action is one that “could well dissuade a
reasonable worker from making or supporting a charge of
discrimination.” Burlington N. & Santa Fe Ry. Co. v. White,
548 U.S. 53, 57 (2006); see Rochon, 438 F.3d at 1219. The
district court held Taylor had failed to show that her filing the
April 2002 complaint had been the cause of four of the

[the employee’s] delay in complaining reasonable” under the
circumstances. 408 F.3d at 795. The dissent suggests Taylor may
reasonably have been uncertain whether Bacon’s conduct violated
the PBGC’s policy because the policy “defined sexual harassment
in objective terms.” Dissenting op. at 7. Taylor, however, was not
at all uncertain; she believed and told others she was being
harassed. Nor could a reasonable jury find Taylor was uncertain
about what the PBGC’s policy required of her: As Taylor
acknowledged in both her EEO complaint and an affidavit, in
October 2001 she posted on her door a PBGC e-mail that stated
“[i]f you believe that you are a victim or witness to workplace
harassment, please report it immediately to an EEO Official or
Counselor.”
 11
reprisals she alleged, had failed to show material adversity
with respect to one, and had failed to rebut the PBGC’s
nondiscriminatory explanation of another.* See Taylor, 516
F. Supp. 2d at 138–39. We affirm the district court on the
ground that five of the six alleged reprisals were not
materially adverse actions and Taylor cannot show the sixth
was retaliatory.**

First. Hagans criticized Taylor for exhibiting “negative
behaviors.” The district court held, and we agree, that
Hagans’s criticism was not a materially adverse action. See

*
Retaliation claims based upon circumstantial evidence are
governed by the three-step test of McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973), which requires the employee first to
establish prima facie the elements of retaliation. See Wiley v.
Glassman, 511 F.3d 151, 155 (D.C. Cir. 2007). If the plaintiff does
so, then the burden shifts to the employer to offer a legitimate,
nondiscriminatory reason for its action. Id. If the employer does
so, then the court “need not — and should not — decide whether
the plaintiff actually made out a prima facie case under McDonnell
Douglas,” Brady v. Office of Sergeant at Arms, 520 F.3d 490, 494
(D.C. Cir. 2008) (disparate treatment claim); Jones v. Bernanke,
557 F.3d 670, 678 (D.C. Cir. 2009) (retaliation claim); rather, the
court should proceed to the question of retaliation vel non. The
court can resolve that question in favor of the employer based
either upon the employee’s failure to rebut its explanation or upon
the employee’s failure to prove an element of her case — here that
her employer took a materially adverse action against her.
**
A circuit court is “justified in resolving an issue not passed on
below ... where the proper resolution is beyond any doubt.”
Singleton v. Wulff, 428 U.S. 106, 121 (1976); see Jones, 557 F.3d at
676 (“we may affirm a judgment on any ground the record
supports,” provided “the opposing party had a ‘fair opportunity’ to
address” that ground). Taylor, who had the burden of proof, had
such an opportunity and took it; she engaged in extensive discovery
aimed at proving retaliation.
 12
id. at 138; see also Burlington Northern, 548 U.S. at 68
(“petty slights [and] minor annoyances” would not deter
reasonable employee from making charge of discrimination).

Second. Henkel and Joy slowed the processing of
Taylor’s cases after she filed her complaint and Joy and
Henkel required her (as they had some other auditors) to
submit biweekly reports on the status of her work. Such
minor “inconveniences and alteration of job responsibilities
[do] not rise to the level of adverse action” necessary to
support a claim. Stewart v. Evans, 275 F.3d 1126, 1135 (D.C.
Cir. 2002); see Wiley, 511 F.3d at 161 (change in workload a
trivial harm); cf. Holcomb v. Powell, 433 F.3d 889, 897 (D.C.
Cir. 2006) (“We have consistently declined to serve as a
‘super-personnel department’”); accord Dale v. Chicago
Tribune Co., 797 F.2d 458, 464 (7th Cir. 1986).

Third. Joy did not recommend Taylor for a position the
PBGC was considering creating but ultimately did not create.
Although a refusal to promote is a materially adverse action,
see Stewart v. Ashcroft, 352 F.3d 422, 427 (D.C. Cir. 2003),
because there was no position to which she might have been
promoted, Taylor was not denied a tangible opportunity to
advance her career. Cf. Baloch v. Kempthorne, 550 F.3d
1191, 1199 (D.C. Cir. 2008) (“evaluations and written
warnings were not adverse actions because none had ‘tangible
job consequences’” (construing Whittaker v. N. Ill. Univ., 424
F.3d 640, 648 (7th Cir. 2005))); Brown v. Brody, 199 F.3d
446, 457 (D.C. Cir. 1999) (plaintiff must show “reasonable
trier of fact could conclude [she] has suffered objectively
tangible harm”). In any event, Joy’s non-recommendation for
a hypothetical position would not have dissuaded a reasonable
employee from coming forward.
 13
Fourth and fifth. Taylor’s supervisors twice lowered her
performance evaluation — from “Outstanding” in 2001, to
“Excellent” in 2002, and to “Fully Effective” in 2003. In
order for a performance evaluation to be materially adverse, it
must affect the employee’s “position, grade level, salary, or
promotion opportunities.” See Baloch, 550 F.3d at 1199.
Taylor’s bare, conclusory allegation that she was denied
promotional and bonus opportunities “[a]s a result of PBGC’s
unlawful conduct in violating Title VII’s prohibition against
retaliation” does not discharge her burden to show the
evaluations were “attached to financial harms.” Id.

Sixth. Taylor was temporarily listed as AWOL in the
first or second week of November 2003. Although the PBGC
ultimately rescinded the listing and gave Taylor her lost pay,
the temporary deprivation of wages counts as a materially
adverse action. See Greer v. Paulson, 505 F.3d 1306, 1317
(D.C. Cir. 2007) (“diminution in pay or benefits can [be
adverse] even when the employer later provides back pay”).

The Corporation offered a nondiscriminatory reason for
the challenged action: The Human Resources Department
directed Henkel to list Taylor as AWOL because the leave
slip she submitted appeared to indicate Taylor had not
obtained Henkel’s prior approval, as all auditors were
required to do. After Taylor had returned to work and the
confusion was eventually dispelled, the AWOL charge was
rescinded and Taylor’s pay restored. We therefore move to
the question of retaliation vel non, see Jones, 557 F.3d at 678,
which in this instance reduces to whether a reasonable jury
could find the Corporation’s “proffered explanation is
unworthy of credence,” Tex. Dep’t of Cmty. Affairs v.
Burdine, 450 U.S. 248, 256 (1981).
 14
Taylor rebuts the PBGC’s explanation by asserting she
contacted Henkel regarding her request for annual leave
before she left the leave slip in his in-box. Although Henkel
denies having given Taylor oral approval, we assume a
reasonable jury could credit Taylor’s account. Her account,
however, does nothing to undermine the PBGC’s explanation
because in her opposition to the motion for summary
judgment she acknowledged she erred in completing the
request form by “mistakenly check[ing] the ‘sick leave’ box”
but entering the dates in the area for annual leave. Henkel
therefore asked Human Resources for direction and merely
implemented their decision.* Once the confusion, which
Taylor herself had created, was cleared up, her record was
corrected and her pay was restored. Therefore, no reasonable
jury could infer the PBGC retaliated against Taylor when it
treated her as having taken leave without permission. See
Greer, 505 F.3d at 1319–20.

Taylor’s remaining arguments on this score are even
further off the mark, but two do deserve mention. First, on
appeal Taylor newly points out that the PBGC placed her on
AWOL in November 2003, two and one-half months after she
filed her first lawsuit; hence, she argues, “there is sufficient
temporal proximity for a reasonable jury to find” the
Corporation was retaliating against her.** On the contrary, an

*
Although, as the dissent notes (at n.6), it appears from the face of
the leave slip that Henkel first approved Taylor’s request, he
explained that as a matter of course he signed such slips when he
received them. His change of position is consistent with the
PBGC’s explanation that Henkel, confused by Taylor’s error in
completing the slip, requested guidance from Human Resources.
**
Taylor offers this argument to show she made out a prima facie
case but, because she wants this case remanded to the district court
for a trial on the merits, we take her argument as equally applicable
to the issue before us.
 15
inference of retaliatory motive based upon the “mere
proximity” in time between Taylor’s filing her first suit and
the AWOL listing two and one-half months later would be
untenable on the record here. See Woodruff v. Peters, 482
F.3d 521, 530 (D.C. Cir. 2007) (“positive evidence beyond
mere proximity is required to defeat the presumption that the
proffered explanations are genuine”); Bilow v. Much Shelist
Freed Denenberg Ament & Rubenstein, P.C., 277 F.3d 882,
895 (7th Cir. 2001) (rejecting argument that “two-month
period between [protected activity] and [employee’s]
discharge establishes a ‘causal connection’ between the two
events” when employee had not pointed to other
circumstances suggesting events were related); see also Clark
County Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001)
(stating, “to establish a prima facie case ... the temporal
proximity must be ‘very close,’” and citing with approval
case holding three month interval is, as a matter of law, not
close enough); Kipp v. Mo. Highway & Transp. Comm’n, 280
F.3d 893, 897 (8th Cir. 2002) (holding employee failed to
make out “causal link” required for prima facie case of
retaliation because two months between protected activity and
challenged action could not, as a matter of law, “justify a
finding in [her] favor”).

Second, Taylor argues the jury could infer either Henkel
or the Human Resources Department or both retaliated
against her because on more than one occasion after she filed
her EEO complaint Henkel criticized her work and yelled at
her and because her coworkers somehow learned she had
been listed as AWOL. These incidents do not amount to the
“pattern of antagonism” required for a reasonable jury to infer
Henkel, much less Human Resources, was retaliating against
Taylor. Cf. Woodson v. Scott Paper Co., 109 F.3d 913, 920–
21 (3d Cir. 1997) (“plaintiff can establish a link between his
or her protected behavior and [the alleged reprisal] if the
 16
employer engaged in a pattern of antagonism in the
intervening period”). The petty slights she describes, which
would not qualify as adverse actions, see Burlington
Northern, 548 U.S. at 68, likewise do not suffice to make out
a case of retaliation, see id. (“Title VII ... does not set forth ‘a
general civility code for the American workplace’” (quoting
Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 80
(1998))).* In sum, the PBGC was entitled to summary
judgment because Taylor has not provided a reasonable jury
any basis upon which to disbelieve the PBGC’s explanation
of the AWOL incident.

III. Conclusion

For the foregoing reasons, the judgment of the district
court is
Affirmed.

*
Contrary to the suggestion that Taylor suffered retaliation by “a
thousand cuts,” Dissenting op. at 17, there is no such pattern of
abuse here. The dissent merely assumes allegedly retaliatory acts
were in fact retaliatory. Id. at 13–14, 17–18. Nor does the dissent
explain how trivial actions on the part of Joy and Henkel could
support a reasonable inference that the Human Resources
Department acted with a retaliatory motive. Id. at 17–18.
 ROGERS, Circuit Judge, dissenting. Because a reasonable
jury could find in appellant Ruby Taylor’s favor, I would
reverse the grant of summary judgment. This is clear but for the
court’s failure in three instances to apply the correct legal
standards.

I.

Upon review of the grant of summary judgment, it is not the
role of the court to evaluate and weigh the proffered evidence.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
Instead, this court must view the evidence before the district
court in the light most favorable to the non-moving party —
here, Taylor — and must accord her the benefit of all reasonable
inferences. Id. at 255; Salazar v. Washington Metro. Transit
Auth., 401 F.3d 504, 507 (D.C. Cir. 2005). Yet the court has
done the opposite, presenting the evidence in the light most
unfavorable to Taylor and denying her the benefit of the
reasonable inferences to which she is entitled. How else could
the court conclude, for instance, that Taylor was the cause of the
temporary denial of a week’s pay when she proffered evidence
that she had cleared her leave from work with her supervisor in
advance, that she had successfully requested leave in a similar
fashion on prior occasions, and that her supervisor remembered
approving the leave request? This example is only one of
several that demonstrates the manner in which applying the
wrong standard of review infects the court’s analysis.

Applying the correct standard of review, the evidence
shows that Taylor had been an auditor for approximately ten
years and had received an outstanding performance evaluation
in 2001. In a nutshell, she proffered evidence that she had been
subject to casual sexual harassment by Robert Bacon beginning
in the fall of 2001, that she was not fully informed of her options
under her employer’s sexual harassment procedures, that her
harasser used his supervisory authority to intimidate her by
suggesting that if she formally complained about his harassment
 2

she would be punished and not him, that she complained to a
member of management, David Smith, who did not recommend
she report the harassment to anyone else, and that when the
harassment intensified in the winter of 2001-02 to the point of
becoming physically threatening, she filed a formal complaint
in April 2002, as her employer’s policy contemplated. Her fear
that her supervisors would retaliate if she filed a formal
complaint was realized soon thereafter. For example, Robert
Joy, the manager of the Pre-termination Process Division in
which Taylor worked, refused to recommend her for a job with
another supervisor and told her harasser she had lied. Bennie
Hagans, the head of the Insurance Operations Department and
Joy’s superior, warned her about her “negative behaviors.” Her
immediate supervisor, Jonathan Henkel, required for the first
time that she submit biweekly reports of her progress on pending
cases, which since she filed her complaint had consisted of less
desirable, low priority cases. Her work was reviewed more
slowly, even though her performance evaluations turned on
productivity, with the result that she was downgraded from
“outstanding” to “excellent” in 2002 and further downgraded to
“fully effective” in 2003. Then, a mere two and one half months
after she filed a complaint in the district court, she was denied
a week’s pay for an unknown period of time when Henkel
placed on absent without leave (“AWOL”) status, even though
she had obtained leave permission from him in advance and he
recalled approving it. Taylor filed a second complaint in
February 2004.

Viewing this evidence in the aggregate and according
Taylor favorable inferences, a reasonable jury could find she
proved hostile environment sex discrimination and retaliation.
For purposes of surviving summary judgment, she has overcome
the two hurdles that the court identifies.
 3

II.

Delay in reporting sexual harassment. On the question
whether Taylor’s sexual harassment claims are barred because
of her delay in filing a formal complaint, this court held in
Greene v. Dalton, 164 F.3d 671 (D.C. Cir. 1999), that an
employer is not entitled to summary judgment under the second
element of a Faragher/Ellerth affirmative defense1 unless it
shows that, “as a matter of law, a reasonable person in [the
employee’s] place would have come forward early enough to
prevent [the] harassment from becoming ‘severe or pervasive,’”
id. at 675. This is an objective standard, and a genuine issue of
material fact remains as to whether a reasonable person in
Taylor’s position would have reported any occurrences prior to
the April 5, 2002 copy room incident. Contrary to binding
precedent, however, the court converts this objective standard
into one that is subjective, Op. at 7, and so errs. See LaShawn
A. v. Barry, 87 F.3d 1389, 1395 (D.C. Cir. 1996) (en banc).

Roebuck v. Washington, 408 F.3d 790 (D.C. Cir. 2005), is
instructive in demonstrating there is a material issue of disputed
fact. There, Linda Roebuck, an administrative assistant in the
D.C. Department of Corrections, alleged her supervisor Mr.
Corbett had sexually harassed her, id. at 791. Roebuck

1
In Faragher v. City of Boca Raton, 524 U.S. 775 (1998), the
Supreme Court held that employers have an affirmative defense
against actionable hostile environment claims when no tangible
employment action is taken against the employee-plaintiff. The
defense has two necessary elements: (1) “the employer exercised
reasonable care to prevent and correct promptly any sexually harassing
behavior,” and (2) “the plaintiff employee unreasonably failed to take
advantage of any preventive or corrective opportunities provided by
the employer or to avoid harm otherwise.” Faragher, 524 U.S. at 807;
see Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998).
 4

presented evidence that Corbett had sexually harassed her “off
and on,” id., for almost two years beginning in 1995, id. When
he was promoted to Deputy Warden in August 1997, he
requested Roebuck’s transfer to his office and “resumed
harassing her.” Id. During October 1997 through January of the
following year, his harassment intensified. For example, he left
a note reading “Sexy” on a stack of her work assignments, made
suggestive hand gestures, and several times tried to kiss her. Id.
at 791-92. The final straw came on January 16, when Corbett
called Roebuck into his office, where he had “bedroom music”
playing, and simply stared at her, saying nothing. Id. at 792.
When Roebuck asked what he wanted, he just kept staring. Id.
Roebuck left, but Corbett immediately called her back and
resumed his silent staring. Id. On January 21, Roebuck
formally complained to a lieutenant that Corbett was sexually
harassing her. Id. The jury rejected her claims against her
employer, finding that two years was an unreasonable amount
of time to wait to file a complaint. Id.. Although this court
affirmed, it concluded that “[u]pon this record, a reasonable
jury certainly could have found in Roebuck’s favor.” Id. at 796
(emphasis added). Cf. Watts v. Kroger Co., 170 F.3d 505 (5th
Cir. 1999).

Assuming the truth of the statements proffered by Taylor,
see Greene, 164 F.3d at 674, and granting her all favorable
inferences from her evidence, Anderson, 477 U.S. at 255,
Taylor’s case bears a striking resemblance to the escalating
harassment in Roebuck, and a reasonable jury “could certainly
[find]” in Taylor’s favor, concluding that a reasonable person in
her position would not have reported Bacon’s conduct prior to
April 2002, when his harassment intensified and assumed a
more dangerous and threatening character than it had before.
The “off and on” 2001 incidents were fleeting and resembled the
“simple teasing” and “offhand comments” that do not amount to
actionable harassment, Faragher, 524 U.S. at 788, and a jury
 5

might well find a reasonable person would not report them. The
April incidents, by contrast, were more explicit and physically
charged, centering on Taylor’s physical appearance, and
occurred on consecutive days. On April 3, Bacon told Taylor
that she was “flaunting that black,” referring to her exposed
arms. On April 4, when she turned her head but not her body to
acknowledge him as he came into her office, he motioned with
his hand that she should turn around. After she refused , he kept
motioning with his hand that she should turn around, saying,
“What did I tell you about turning your back to me? You’d
better turn around when I’m talking to you.” Taylor averred that
“this was the entire conversation,” and that he wanted her to turn
around so that he could see her chest and legs. On April 5, the
two met in the copy room, at which point Bacon approached her
with his hands raised as if he were going to choke her. When
she told him not to touch her, he said, “I’ll touch you if I want
to. I can do what I want to.” During that incident, he also called
her “baby” and told her to “go ahead [and report him]. Go tell
Robert [Bacon’s supervisor]. He won’t do anything. He likes
me too much.” Taylor formally reported this behavior on April
9.

This increasingly physical and aggressive series of April
incidents stand in stark contrast to prior incidents — the most
serious of which were the “red all over” comment made, not by
Bacon, but by Taylor’s coworker whom Bacon awarded with
bonus points for the “embarrassing” moment, and Bacon’s
inquiry after she received an outstanding performance
evaluation about what was she going to do for him. Other
incidents were on the level of Bacon mentioning to Taylor that
he wanted to be “her friend” or that she did not actually love her
fiancé and that he could “beat him,” conduct that could be
described as casual “off and on” harassment, Roebuck, 408 F.3d
at 791. Furthermore, the challenged events lasted, at most,
seven months until Taylor formally reported them, as opposed
 6

to the two years during which Roebuck endured such harassment
before it intensified and she formally complained.2

Although the lesser “off and on” incidents contribute to the
atmospheric element of a hostile environment sex discrimination
claim, see Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101,
115 (2002), a reasonable jury could find they were not yet so
startling or foreboding that a reasonable person in Taylor’s
position would have come forward earlier to prevent Bacon’s
harassment from becoming as severe and pervasive as it became
in April 2002. Her employer’s sexual harassment policy
contemplated that employees would not file formal complaints
until the harassment had become objectively severe, when the
employee “reasonably perceived [such conduct] as creating a
hostile or abusive work environment.” Policy Statement on the
Prevention of Sexual Harassment, PBGC Notice No. 96-11

2
The court makes no attempt to explain how Bacon’s conduct
prior to April 2002 differs from the “off and on” harassment that
Roebuck endured before Corbett’s harassment escalated and she filed
a formal complaint. Although it attempts to distinguish Roebuck on
the ground that “the question [there] was whether ‘fear and uncertainty
made [the employee’s] delay in complaining reasonable,’” Op. at 9-
10 n.* (quoting Roebuck, 408 F.3d at 795) (second alteration in
original), Roebuck’s supervisor threatened retaliation less than a
month before she complained in January 1998, and her uncertainty
about whether the employer’s sexual harassment policy applied to
conduct outside of the workplace extended at most to October of the
previous year. Yet her supervisor had been harassing her “off and on”
for nearly two years prior; “fear and uncertainty” thus came into play
only after a long period of ongoing harassment. The court offers no
reason why Roebuck’s two-year delay in reporting any of this “off and
on” harassment was excusable, see Roebuck, 408 F.3d at 796, while
Taylor’s at most seven month delay is not.
 7

(emphasis added).3 In doing so, the employer sought to curb
“sexual harassment” in terms of “unwelcome sexual advances
and requests for sexual favors” that have real work-related
consequences, not casual, unwanted flirtation or trivial slights.

Reviewing Taylor’s proffered evidence, however, the court
errs with respect to the legal standard for determining when,
under Faragher and Greene, an employee must take advantage
of her employer’s corrective procedures. Despite directly
relevant precedent and the employer’s sexual harassment policy
that defined sexual harassment in objective terms, the court
holds, as a matter of law, that Taylor should have reported
Bacon’s harassment in “October or November of 2001” because
“[a] reasonable employee who believes and tells others she is
being sexually harassed would report it.” Op. at 7. This holding
abandons binding precedent by converting what was heretofore
a legally objective inquiry into when an employee should have
reported harassment, Greene, 164 F.3d at 675, into one that is
now subjective. The court accomplishes this conversion by
sleight of hand, recasting Greene’s objective standard in terms

3
The Policy Statement defined “sexual harassment” as:

[v]erbal or physical conduct of a sexual nature, including
unwelcome sexual advances and requests for sexual favors
. . . when:
a. submission to such conduct is made explicitly either
a term or condition of an individual’s employment;
b. submission to or rejection of such conduct by an
individual is used as the basis for employment
decisions affecting such individual; or
c. such conduct is reasonably perceived as creating a
hostile or abusive work environment.

Policy Statement on the Prevention of Sexual Harassment, PBGC
Notice No. 96-11 (emphasis added).
 8

of the employee’s subjective belief. Yet the purpose of an
objective standard is to provide a frame of reference that
excludes an individual’s subjective belief. Otherwise, an
objective test would be meaningless and, in this type of case,
would have the unintended consequence of placing a more
stringent reporting requirement on a more sensitive plaintiff,
who may believe she is being sexually harassed when, in fact, a
reasonable person would disagree.

Under the correct legal standard — whether an employee
who reasonably believes she is being sexually harassed would
report it or was unreasonable in not reporting it — it is for a jury
to decide whether Taylor should reasonably have believed she
was being sexually harassed in a manner that required reporting.
On this record, a reasonable jury could find that the fall 2001
incidents were not so startling or foreboding a reasonable person
would have reported them to prevent escalation and/or that the
employer’s objective sexual harassment policy did not cover
Bacon’s pre-April 2002 conduct, which became reportable only
when it escalated from “off and on” comments to physically
aggressive advances. In either instance, Taylor’s decision not to
report earlier would be reasonable. The affidavit of supervisor
David Smith supports both of these inferences, stating that
Taylor became more and more upset with Bacon’s behavior, that
Smith “guess[ed]” Bacon’s behavior began around September
or the fall of 2001, and that “[i]t was a gradual thing. . . . [I]t
gradually over the months, it got to be pretty severe.” Smith Aff.
6-7 (emphasis added). The court’s response, that Taylor
believed she was being harassed in “October or November
2001” because she “posted the [employer’s] sexual harassment
policy on her office door and told her friend Smith that Bacon
had been sexually harassing her,” Op. at 7, is a red herring,
ignoring both the objective tests articulated in Faragher and
Greene as well as the employer’s objective sexual harassment
 9

policy, and misdirecting the relevant inquiry.4 Whether Taylor
herself believed she was being sexually harassed is irrelevant
under all applicable standards.

As further evidence on which a jury could base a finding
that Taylor did not unreasonably delay in reporting Bacon’s
conduct, Taylor proffered evidence that Bacon at least twice
threatened retaliation if she complained about him. In addition
to the copy room incident, Bacon had previously told Taylor that
if she “said something, they would think that [she was] the

4
The court misreads Taylor’s EEO complaint, Op. at 7, 10
n.*, which does not state that she posted the sexual harassment policy
on her door in response to Bacon’s conduct towards her, but rather —
and only — that she posted it in response to “several incidents with the
PPD management staff that I think are incidents of harassment so that
was my subtle way to say look at this, stop, you are behaving in this
manner, be careful.” EEO Compl. Att. 8. Taylor makes no mention
here whether these “incidents” related to her specifically; at the
summary judgment stage, the court must view the facts in the light
most favorable to her and conclude they did not.

Moreover, the court fails to acknowledge what the court in
Roebuck presumed, namely the wide gulf between a layperson’s use
of the word “harassment” to try to prevent inquiry into her personal
affairs, and a court’s use of the same word as a term of art to express
a legal conclusion under Faragher and Meritor. For instance, a male
boss who calls a female employee “honey” or “sweetie” may provoke
a response to stop “sexually harassing me” or a complaint to a friend
that she is being “sexually harassed,” but she would be wrong as a
legal matter if she thought such conduct, without more, was actionable
or that the incident merited reporting under the policy of Taylor’s
employer. So too with Taylor’s statements to Bacon in response to
him telling her he “bet [he] could beat [her boyfriend]” or to Smith
when she complained about Bacon’s behavior.
 10

problem, not him.” In Roebuck, the court held “whether fear [of
retaliation] and uncertainty [about the scope of the employer’s
policy] made Roebuck’s delay in complaining reasonable was
for the jury to decide.” Roebuck, 408 F.3d at 795. Here too
there is a material issue of fact for the jury to resolve. To avoid
this conclusion the court instead evaluates Taylor’s evidence to
find that Bacon had “no leverage at all with which to intimidate
Taylor” because he was not her supervisor. Op. at 9. But
Taylor proffered undisputed evidence that Bacon had told her he
could get her an outstanding performance evaluation because he,
her immediate supervisor (Henkel), and their supervisor (Joy)
would as a group discuss what ratings to give subordinates, and
that Bacon took credit when she received her outstanding
evaluation. Further, it was undisputed that Bacon and Henkel
socialized together and were “golfing buddies” who played golf
approximately ten times a year. A reasonable jury could find
that, faced with such management solidarity, any perceived
delay in reporting Bacon’s conduct was reasonable.

The cases on which the court relies do not dictate a contrary
conclusion. For instance, although the Fourth Circuit in Barrett
v. Applied Radiant Energy Corp., 240 F.3d 262 (4th Cir. 2001),
rejected the “argument that reporting sexual harassment is
rendered futile merely because members of the management
team happen to be friends,” id. at 268, the court overlooks both
the different evidence Taylor offered regarding Bacon’s ability
to get her an outstanding evaluation and the difference that the
Fourth Circuit drew between fear of futility and fear of
retaliation. That court’s statement referred to futility and
responded to employee Barrett’s contention that she failed to
report her supervisor’s behavior because he was friends with
management and she “did not think it would do any good.” Id.
In this respect, “the only cost” to Barrett would have been
failure to prevail upon filing a complaint, as she had no
objective reason to fear retaliation. See Reed v. MBNA Mktg.
 11

Sys., 333 F.3d 27, 36 (1st Cir. 2003). Yet the Fourth Circuit
made no similar statement regarding fear of retaliation, stating
only that “generalized” and “nebulous” fear of retaliation would
not suffice to explain a delay in reporting. Barrett, 240 F.3d at
267. Here, by contrast, Taylor presented evidence from which
a reasonable jury could find that she had a specific, “credible,”
Reed, 333 F.3d at 36, reason to fear retaliation that was not
merely “generalized,” Barrett, 240 F.3d at 267, “nebulous,” id.,
or “subjective,” Walton v. Johnson & Johnson Servs., 347 F.3d
1272, 1290 (11th Cir. 2003). “[F]ailure” was therefore not “‘the
only cost’ to Taylor of reporting Bacon in the fall of 2001,” Op.
at 9 (quoting Reed, 333 F.3d at 36), and a jury could find that
any reasonable delay was justified under the circumstances.
With favorable inferences, Taylor’s fear was no less
substantiated than Roebuck’s, whose supervisor commented
only once, vaguely, that he did not want to “find out [she] was
taking sides with Lieutenant Clark,” who had witnessed him
trying to kiss Roebuck. Roebuck, 408 F.3d at 792. Indeed,
Taylor’s proffered evidence of retaliatory threats and conduct is
stronger than was Roebuck’s.

III.

Retaliation. The evidence Taylor proffered to show
retaliation illustrates why an employee would hesitate before
filing a complaint pursuant to an employer’s sexual harassment
policy. A complaint leads to an investigation that alerts the
accused and other employees, including, as occurred here, the
complaining employee’s immediate supervisor ( Henkel) and his
superiors (Joy and Hagans), that the employee has filed a
complaint against another supervisor (Bacon). That process
may itself cause negative consequences for an employee
regardless of the outcome of the employer’s remedial process.
Nonetheless, the high bar set for discrimination claims is no less
high for claims of retaliation, see Brown v. Brody, 199 F.3d 446,
 12

457 (D.C. Cir. 1999), and an employee may recover damages
only for those instances of retaliation that resulted in a
“materially adverse” action. Burlington N. & Santa Fe Ry. v.
White, 548 U.S. 53, 57, 68-69 (2006).

As with Taylor’s sexual harassment claim, the court
improperly, and with great consequence, denies Taylor the
benefit of reasonable and favorable inferences from the
evidence. E.g. Op. at 15 (concluding an inference of retaliatory
motive would be “untenable on the record here” where based on
“‘mere proximity’” between the time she filed suit and the
AWOL listing). It also disaggregates her evidence, Op. at 11-
13, when the legal standard requires it to be viewed in the
aggregate. Although correctly concluding that the withholding
of pay due pursuant to the “AWOL” incident was a materially
adverse action, Op. at 13, the court weighs and evaluates
conflicting evidence in holding that Taylor failed to rebut her
supervisor’s non-discriminatory reason for placing her on
AWOL status, Op. at 14. Dissecting the portrait of her work
experiences after she formally complained, Op. at 11-16, and
failing to view the evidence in the aggregate, the court
concludes that “Taylor herself had created” “the confusion”
with regards to this incident. Viewed under the correct legal
standard, however, Taylor has raised a material issue of disputed
fact on which a reasonable jury could find in her favor.

Taylor’s retaliation claim is governed by the three-step
framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). Under this framework, Taylor proffered evidence
establishing a prima facie case of unlawful retaliation. After
engaging in statutorily protected activity when she reported
Bacon, her supervisor (Henkel) claimed she was AWOL even
though she had followed the usual procedures for requesting
leave, and denied her a week of earned pay, withholding it for
an unknown period of time. As the court holds, that withholding
 13

was a materially adverse action. Op. at 14. However, the
court’s subsequent analysis fails both to acknowledge the
aggregate effect of Taylor’s evidence of a causal connection
between the protected activity and the adverse action and to
accord her favorable inferences.

In Greer v. Paulson, 505 F.3d 1306 (D.C. Cir. 2007), this
court held, “After the employer offers a non-[retaliatory]
justification for its actions, the McDonnell Douglas []
framework falls away, and [the court] must determine whether
a reasonable jury . . . could infer [retaliation] from the
combination of (1) the plaintiff’s prima facie case; (2) any
evidence the plaintiff presents to attack the employer’s proffered
explanation for its actions; and (3) any further evidence of
[retaliation] that may be available to the plaintiff,” id. at 1318
(third alteration and ellipsis in original; internal quotation marks
omitted) (quoting Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1289
(D.C. Cir. 1998) (en banc)); see Singletary v. Dist. of Columbia,
351 F.3d 519, 524 (D.C. Cir. 2003) (applying McDonnell
Douglas to a retaliation claim). Greer makes clear that all
instances of retaliation, whether or not they are individually
actionable under Burlington Northern, are relevant to this
determination because they shed light on whether actionable
conduct was retaliatory in nature. As the First Circuit has
pointed out, “the critical inquiry becomes whether the aggregate
evidence of pretext and retaliatory animus suffices to make out
a jury question.” Mesnick v. Gen. Elec. Co, 950 F.2d 816, 827
(1st Cir. 1991) (emphasis added).

Taylor’s proffered evidence pointed to a series of actions
that adversely affected her ability to do her job. For example,
there was evidence that as a result of her formal complaint, her
immediate supervisor (Henkel) held up her work, delaying its
submission to the Office of General Counsel, and assigned her
low priority cases, all resulting in a lower level of productivity
 14

for the twelve-month period than in previous years. Where
performance evaluations are directly correlated to productivity,
as was true in Taylor’s employment situation, these actions
necessarily resulted in steadily declining evaluations, from
“outstanding” to “excellent” in 2002, and from “excellent” to
“fully effective” in 2003. Taylor expressed fear that if they
continued to decline she might receive an “unacceptable,” which
is grounds for dismissal. As further examples, there was
evidence that her second level supervisor (Joy) with whom she
rarely spoke, had recommended she not be hired by another
supervisor because he did not trust Taylor, that he had advised
Bacon not to go by her office “because she could take this, you
know, as a way to tell another lie,” Bacon Depo. at 102, and that
her third-level supervisor (Hagans) warned her about her
“negative behaviors.”

When viewed in context with other proffered instances of
management retaliation, and contrary to the court’s
impermissible weighing and disaggregation of the evidence
against Taylor, a reasonable jury could disbelieve her
supervisor’s claimed reason for placing her on AWOL status
and instead credit Taylor’s account of what transpired. See Aka,
156 F.3d at 1290 (quoting St. Mary’s Honor Center v. Hicks,
509 U.S. 502, 511 (1993)) . According to Taylor, she requested
leave in person and Henkel approved it informally, a practice
that he admits is standard, acknowledging that in the past he
signed her leave slips even after her leave had begun. Henkel
thus knew exactly what type of leave she was requesting and
which dates she would be out of the office. Nonetheless, seeing
an opportunity to make her life more difficult in view of her
complaint against his supervisor-friend and golfing buddy,
when he noticed she checked the box for sick leave but placed
the dates she would be out on a line above (next to annual
leave), he claimed “confusion” and reported her to Human
Resources, which, as an experienced supervisor, he knew would
 15

instruct him to designate her AWOL. There was no evidence
that Human Resources would have so instructed had he not
referred her request or had he advised, based on the
conversation Taylor avers she had with him, what type of leave
she wanted. There is no evidence, in fact, that Human
Resources routinely reviewed these request forms when they
were approved by the employee’s supervisor.

The court would instead improperly credit her employer’s
account of the events, stating that Henkel, “confused” by
Taylor’s “err[or] in completing the request form by ‘mistakenly
check[ing] the sick leave box’ but entering the dates in the area
for annual leave,” Op. at 14 & n.* (second alteration in original)
(quoting Taylor’s Opp. to Mot. Summ. J. at 37), requested
guidance from Human Resources.5 The court relies on her
supervisor’s incomprehensible affidavit testimony: “Well, there
was some confusion as to whether it was sick leave or annual
leave. When I talked to personnel basically they said if it was
sick leave cause [sic] she put the sign at the time for leave in the
annual spot, but she checked off the sick leave portion of it, so
I didn’t know if she was on sick leave or annual leave.” Henkel
Aff. 9. This hardly establishes undisputedly that Taylor was the
cause of any “confusion.” Admitting in the same affidavit that
during the years he had been her supervisor there had never
been a problem with Taylor’s leave, Henkel claimed
“personnel” directed she be placed on AWOL because she had
not received his prior approval. Id. at 10. This is not the same

5
To the extent the court interprets this statement, which
appeared only as a parenthetical in Taylor’s opposition to the motion
for summary judgment, as an acknowledgment of her error in
completing the form, the court ignores the more obvious contextual
interpretation that Taylor was recounting Henkel’s claimed basis for
“confusion,” not confessing error. Again, the court views the record
in the light least favorable to Taylor.
 16

explanation for disapproval as the “confusion” he identified
earlier. Moreover, the leave request slip, on which the court
also relies, belies the “confusion” explanation.6 On that request
Henkel wrote in longhand that he “did not receive [the leave
request] until Friday afternoon 10/31” and that “I’m assuming
prior arrangements were made for this leave but no
arrangements were made with me.” This explanation makes no
reference to “confusion” about the type of leave requested.
Moreover, Taylor averred that she had requested leave in person
and cleared her leave with Henkel informally, a practice that he
admits is standard and which in this instance would undermine
any “confusion” claim about what type of leave she sought.

Given Taylor’s evidence, Henkel’s affidavit, and the leave
request form showing what appear to be Henkel’s handwritten
alterations to a previously signed and approved document, a
material issue of disputed fact remains as to whether Henkel
approved her leave as she claimed on October 31 or
disapproved it on November 4 because of “confusion.”
Although his apparent change of position may, as the court
suggests, be “consistent with the [employer]’s explanation that
Henkel [was confused],” Op. at 14 n.*, the employer’s
explanation must be more than “consistent” to prevail on
summary judgment; it must exist to the exclusion of another

6
Taylor’s leave request form has a typed “X” only in the box
marked “Accrued Sick Leave,” which appears in a column listing
various types of leave, and a typed listing of the dates on the first line
to show when she would be out and the number of work hours she
would miss. Beside her signature in the “CERTIFICATION” box is
typed “10/31/03” for the date of the request. By contrast, on the
signature line for “OFFICIAL ACTION ON REQUEST,” the “X”
next to “APPROVED” is scratched out and an “X” appears next to
“DISAPPROVED”. On the signature line, following Henkel’s
signature is the handwritten date “11/04/03,” which is written over the
handwritten date, “10/31/03,” effectively crossing out that date.
 17

also consistent explanation that favors the nonmoving party in
order to demonstrate entitlement to a judgment as a matter of
law. FED. R. CIV. P. 56(c); see Anderson, 477 U.S. at 247.
Here, that other explanation is that Henkel conjured up a
“confusion” rationale, an account supported by, for example,
the inconsistency between his affidavit testimony that he did not
find out about Taylor’s leave until he came back to work in
November 2003 and the leave slip itself, on which he
acknowledged receiving it on October 31, 2003, and which he
appears to have signed and dated the same day. See supra n.6;
Aka, 156 F.3d at 1290.

Reaching the opposite conclusion by crediting the
employer’s “confusion” explanation, the court compounds its
error by improperly disaggregating Taylor’s evidence and
disregarding all proffered instances of retaliation that it
concludes were not materially adverse. In doing so, the court
fundamentally misconceives the relevance of this evidence.
Even assuming these events are not themselves legally viable
adverse actions, they are nonetheless evidence that the
withholding of pay, an undisputedly viable adverse action, was
retaliatory, and the court offers no good explanation for its
disregard of those acts when it concludes otherwise. Nor can
it. Just as Taylor’s counsel offered “revenge is a dish best
served cold,” Oral Arg. at 32:04, retaliation can involve “a
thousand cuts,” Patterson v. Whitman, No. 02-2213, 2003 U.S.
Dist. LEXIS 26726, at *8 (D.D.C. June 9, 2003). 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.

The court objects that it cannot “merely assume[] allegedly
retaliatory acts were in fact retaliatory.” Op. at 16 n.*. At
summary judgment, however, that is exactly what the court
must do. Taylor proffered evidence of a pattern of managerial
 18

retaliation, and properly viewed, her evidence is not so
untenable as to merit dismissal at this stage of the proceedings.
Verbal reprimands for “negative behaviors,” telling other
supervisors that an employee cannot be trusted and tells “lie[s],”
and slowed work processing that inevitably results in steadily
declining performance evaluations that — if continued — could
result in dismissal are not “trivial actions,” id., even assuming
they do not constitute actionable retaliation, but see Russell v.
Principi, 257 F.3d 815, 818, 819 (D.C. Cir. 2001); Weber v.
Battista, 494 F.3d 179, 185 (D.C. Cir. 2007). On this record, a
reasonable jury could find that her supervisor’s reporting her to
Human Resources, when in similar circumstances in the past he
had not, was one of a series of retaliatory acts that resulted in
the denial of a week’s pay for an unknown amount of time. The
merits of this question are for the jury to decide, not this court.

* * *

In summary, circuit courts of appeal have acknowledged
the difficult position that employees face as a result of the
Supreme Court’s efforts in Faragher and Ellerth to limit
vicarious liability for workplace sexual harassment. See Reed,
333 F.3d at 35; Walton, 347 F.3d at 1290; Barrett, 240 F.3d at
268. The dilemma for the victim is real: reporting casual
flirtation too early likely results in exoneration for the harasser
and workplace condemnation of the victim; reporting too late
may bar relief altogether, even though the conduct has become
progressively more severe. Navigating this tricky terrain, in
Roebuck this court acknowledged on facts similar to Taylor’s
that a jury could have found the plaintiff was reasonable in not
immediately reporting unwanted advances. See also Greene,
164 F.3d at 674-75. Because this court must accord Taylor as
the nonmoving party all favorable inferences from the evidence,
a reasonable jury could find she did not unreasonably delay in
reporting harassment under her employer’s policy establishing
 19

an objective standard for reporting. It is no response to ignore,
as the court does, the required standard of review and binding
precedent on the substantive legal standards to be applied. The
standard for reporting is an objective one, not the subjective one
the court fashions today. A reasonable jury, viewing her
proffered evidence in the aggregate, as the correct legal standard
requires, also could find that her supervisor unlawfully
retaliated against her for filing a formal complaint. The court
can reach the opposite conclusion only by discarding that
standard of review when it disaggregates and thereby discounts
favorable evidence, denies Taylor the benefit of favorable
inferences, and ignores the real world retaliatory consequences
of the employer’s actions. Whether a reasonable jury would
find in Taylor’s favor or conclude she is not credible is not the
question before this court, only whether she can survive
summary judgment. Essentially, the court overlooks that “all
that is required [from the nonmoving party to defeat summary
judgment] is that sufficient evidence supporting the claimed
factual dispute be shown to require a jury or judge to resolve the
parties’ differing versions of the truth at trial.” First Nat’l Bank
of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968).
Accordingly, on this record I would reverse the grant of
summary judgment and remand the case to the district court.