NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 08a0728n.06
Filed: November 24, 2008
No. 07-6234
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
DEBRA L. VAUGHN, )
) ON APPEAL FROM THE
Plaintiff-Appellant, ) UNITED STATES DISTRICT
) COURT FOR THE WESTERN
v. ) DISTRICT OF KENTUCKY
)
LOUISVILLE WATER COMPANY; JOHN L. ) OPINION
HUBER, Louisville Water Company; GREGORY C. )
HEITZMAN, Vice-President, Louisville Water )
Company; ROBERT K. MILLER, Vice-President, )
Louisville Water Company/Board of Water Works; )
MICHAEL STURGEON, Human Resources, )
Louisville Water Company; RONALD D. EILER, )
Louisville Water Company, )
)
Defendants-Appellees. )
BEFORE: KENNEDY, SUTTON, and McKEAGUE, Circuit Judges.
McKEAGUE, Circuit Judge. Plaintiff Debra Vaughn appeals the district court’s grant of
summary judgment in favor of her former employer, defendant Louisville Water Company (“LWC”),
on her claims of disparate treatment, hostile work environment, and retaliation under Title VII of the
Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq. For the reasons stated below, we
AFFIRM the decision of the district court.
I
A. Factual Background
No. 07-6234
Vaughn v. Louisville Water Co.
In February 1992, LWC, a municipal water utility, hired Vaughn as a Right of Way
Administrator. She was responsible for acquiring easements and obtaining permits for LWC to
install water facilities. Because Vaughn’s position was “exempt,” she was not entitled to overtime.
In 1996, LWC combined the Right of Way and Survey departments into one “process.” A
position was created for the supervisor, or “process owner,” of the new Survey and Easements
department. The position required the applicant to have a surveyor license. Although Vaughn
wanted to apply for the position, she did not have a surveyor license. Ron Eiler, the head of the
Survey department, applied for and received the position. He was the only employee to apply.
Vaughn alleges that the process owner job description included the surveyor license requirement
specifically to exclude her from applying for the position. She apparently told her supervisors, Jim
Asseff and Greg Heitzman, that she did not believe a surveyor license was necessary to perform the
job. According to Vaughn, the two female employees who were later hired into the same process
owner position did not possess a surveyor license.
Nonetheless, Vaughn claims she was told not to worry about the process owner position.
Asseff and Heitzman apparently told her that her job responsibilities would not change. They also
apparently said that Eiler’s process owner position was not at a higher pay grade, nor was it a
promotion for Eiler. Vaughn admits that her job responsibilities did not change after Eiler became
process owner. She remained at a grade 9 pay level and retained the same job title. In February
2002, however, Vaughn claims she became concerned that she was doing the work of a process
owner without the title or salary. She claims she expressed her concerns to Eiler, who
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condescendingly told her to “just keep doing things the way you are and everything will be just fine.”
Vaughn Aff. ¶ 29, J.A. at 169.
In May 2002, Vaughn alleges she reviewed LWC’s employment records and discovered that
Eiler was being paid at a grade 10 pay level—one level higher than her. At that time, she also
claims she discovered that LWC paid overtime to some male employees in positions, such as hers,
that were exempt. She claims the male employees were either exempt and paid more than her, or
non-exempt and paid overtime.
Vaughn also alleges that when she and Eiler interviewed applicants for available positions,
Eiler would only hire males. Specifically, in 1997, she claims Eiler told a female applicant that he
would not hire a female for a survey position. She also claims that Eiler hired white applicants over
African Americans. In 2001, Eiler apparently made a statement regarding the file of a property
owner whose last name was Bigot. Vaughn claims he said, “I’m a bigot, my wife’s a bigot too!”
Vaughn Aff. ¶ 23, J.A. at 168. According to Vaughn, she was offended and insulted by this
statement.
After Eiler’s “bigot” comment, Vaughn alleges she complained to Jim Wehrle, LWC’s Vice
President of Human Resources. Eiler apparently accused her of “character assassination” and was
“irate” that she did not address her problems with him first. Vaughn Aff. ¶ 24, J.A. at 168. As a
result of her complaints, Vaughn participated in a series of meetings with Eiler. She claims these
meetings made Eiler angry and resentful toward her. In the first meeting, she alleges Eiler was
“stone faced” and “slammed his hands on the table” at her. Vaughn Aff. ¶ 26, J.A. at 168.
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Vaughn also alleges that a known “good old boy” atmosphere persisted at LWC. Vaughn
Aff. ¶ 69, J.A. at 179. According to Vaughn, females were treated as lower class employees and
were subjected to “open mockery and verbal abuse” by Eiler and other male employees. Id. She
claims Eiler treated females in a “hostile, harassing way with an air of intimidation and
discrimination.” Vaughn Aff. ¶ 40, J.A. at 171. She also claims that Eiler frequently made negative,
hostile remarks to Diana Cecil, another LWC employee.1 She claims that in early 2002, Eiler began
monitoring his female employees more closely than the male employees. Vaughn also alleges that
Greg Heitzman, LWC’s Vice President, made disparaging remarks about Laura Douglas, LWC’s
corporate counsel, in meetings Vaughn attended. Vaughn claims Heitzman never made these types
of comments about male employees. She alleges that she was typically the only female who attended
these meetings, and that all of the other males would laugh in response to Heitzman’s comments.
In May 2002, Vaughn discussed her concerns with Rhonda Plunkett, LWC’s Director of
Cultural Diversity. John Anderson, the Employee Relations Manager, subsequently began an
investigation into Eiler’s conduct. In June 2002, while the investigation was sill ongoing, Vaughn
claims she was leaving the office when Eiler walked out behind her, drove his car behind her car,
and “just sat there and stared [her] down.” Vaughn Aff. ¶ 47, J.A. at 173. In July 2002, at a
retirement party for one of the company’s secretaries, Vaughn claims Eiler spent the entire time
staring at Vaughn, Cecil, and another female employee “in a very intimidating manner.” Vaughn
1
Cecil also filed a lawsuit against LWC, alleging disparate treatment, hostile work
environment, and retaliation. See Cecil v. Louisville Water Co., No. 3:03CV-540-S, 2007 WL
2746667 (W.D. Ky. Sept. 18, 2007). Cecil’s appeal from the district court’s grant of summary
judgment in favor of LWC is also before this court.
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Aff. ¶ 50, J.A. at 174. After the party, Vaughn claims she met with Greg Heitzman to discuss her
concerns. Heitzman apparently indicated he would consider all options and “ultimately turn it over
to God.” Vaughn Aff. ¶ 51, J.A. at 174. At some point, Heitzman also apparently told Vaughn that
she would not be receiving or submitting her work directly through him anymore. Throughout
Anderson’s investigation of Eiler, Vaughn also claims the male employees turned against her and
the other female employees who had complained. She claims they “put up every road block
possible” and eliminated the females from contact with consultants, which made it difficult for them
to complete their work. Vaughn Aff. ¶ 52, J.A. at 174.
On July 26, 2002, Vaughn’s doctor placed her on short term disability leave, as a result of
depression, anxiety, and stress.
In early September 2002, Anderson completed his investigation of Eiler and cited him with
a code of conduct violation.2 He referred to Eiler’s “inappropriate and unnecessary comments and
statements that leave a ‘perception’ of unacceptable biases towards certain individuals and/or groups
of people.” J.A. at 240. A few days later, Eiler was removed from his position and later transferred
to a resource coordinator position, apparently due to a reorganization of the Right of Way
department.
After being informed of Eiler’s transfer, and a few days before she was scheduled to return
to work, Vaughn claims she discussed her concerns about Eiler with her supervisor, Edwin Chestnut.
She apparently told Chestnut that she was afraid of Eiler and wanted to make sure that Eiler would
2
Section 1.1 of the LWC Employee Code of Conduct and Performance Policy provides that
employees shall “[m]aintain quality and performance standards.”
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be relocated before she returned. Chestnut discussed Vaughn’s concerns with Heitzman, who
apparently indicated that Eiler would not be relocated unless Vaughn presented a doctor’s note.
Vaughn did obtain a doctor’s note extending her short term disability leave for a few days. She
returned to work on October 3, 2002. When she came to work that day, Vaughn claims Eiler “was
standing directly in front of my cubicle, forcing me to walk past him and very confrontational at a
time when almost no one was in the building.” Vaughn Aff. ¶ 55, J.A. at 176. Eiler remained in
the same work location as Vaughn until November 2002. Even after he relocated, Vaughn claims
Eiler periodically visited her floor for no apparent business purpose.
After she returned to work, Vaughn claims her job title was changed in retaliation for her
complaints. She was designated as a “coordinator,” a non-management position, instead of an
“administrator,” a management position. As a result of her new title, Vaughn alleges that she was
ineligible for the company’s Leadership Institute training. Without such training, Vaughn claims she
was denied access to information about LWC’s operations, which prevented her from obtaining
promotions.
In October 2002, Vaughn also claims she received a negative performance evaluation from
her new process owner, Cindy Kowalski.
On December 12, 2002, Vaughn filed a charge with the Equal Employment Opportunity
Commission (“EEOC”), alleging sex discrimination and retaliation under Title VII.
Vaughn again took short term disability leave on February 3, 2003. She was scheduled to
return to work in late April, but she claims she could not return to the adverse atmosphere. She was
again placed on short term disability leave until September 8, 2003. Vaughn did not return to work
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on September 8, however. She claims she was physically incapable of returning because of the
problems that remained unaddressed at LWC.
LWC discharged Vaughn on May 10, 2004. The company informed her that she had failed
to return to work in September 2003, had exhausted all of her leave options, and had offered no
medical documentation for her failure to return.
Also on May 10, 2004, Vaughn filed a complaint of discrimination with the Department of
Labor, Office of Federal Contract Compliance Programs (“OFCCP”). The OFCCP notified LWC
of the complaint and began an investigation.
B. Procedural History
After receiving a right to sue letter from the EEOC, Vaughn timely commenced this action
in the United States District Court for the Western District of Kentucky.3 She asserted claims of
gender discrimination, hostile work environment, and retaliation. On two occasions thereafter,
LWC’s Chief Executive Officer, John Huber, sent an email to all LWC employees informing them
of the discrimination lawsuits filed against the company.
After completion of discovery, and after Vaughn had been discharged, LWC moved for
summary judgment on all claims. Before the district court ruled on the motion, the OFCCP issued
a Notification of Results of Investigation (“NORI”) stating that it had found sufficient evidence to
conclude that sexual harassment had occurred and a hostile work environment existed at LWC. The
district court permitted Vaughn to supplement the record with the NORI, holding that it was
3
Upon receipt of a right to sue letter from the EEOC, a claimant has 90 days in which to
initiate civil proceedings. 42 U.S.C. § 2000e-5(f)(1).
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admissible as an investigative report of a government agency under Rule 803(8)(C) of the Federal
Rules of Evidence. It then granted LWC’s summary judgment motion in full. Vaughn timely
appealed.
II
A. Standard of Review and Summary Judgment Standard
We review a district court’s grant of summary judgment de novo. White v. Baxter Healthcare
Corp., 533 F.3d 381, 389 (6th Cir. 2008). Summary judgment is proper “if the pleadings, the
discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as
to any material fact and that the movant is entitled to judgment as a matter of law.” FED . R. CIV . P.
56(c). A “genuine” dispute is one that would permit a reasonable jury to return a verdict in favor of
the nonmoving party. Henderson v. Walled Lake Consol. Schs., 469 F.3d 479, 487 (6th Cir. 2006).
A fact is “material” only if its resolution could affect the outcome of the litigation under the
applicable law. Id. At the summary judgment stage, the district court must construe the evidence
and draw all reasonable inferences in favor of the nonmoving party. Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986); Jones v. Potter, 488 F.3d 397, 403 (6th Cir. 2007).
B. Statute of Limitations
LWC first argues that any incidents of discrimination, hostile work environment, or
retaliation that occurred before February 15, 2002—300 days before Vaughn filed her EEOC
charge—are barred by Title VII’s statute of limitations. To recover under Title VII, a plaintiff must
first timely file a charge with the EEOC. Amini v. Oberlin Coll., 259 F.3d 493, 498 (6th Cir. 2001).
Both parties agree that Vaughn had 300 days to file her EEOC charge. See 42 U.S.C. § 2000e-
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5(e)(1) (providing that in a state or locality where an agency is authorized to grant or seek relief, an
individual must file a charge with that state or local agency, and must file any charge with the EEOC
300 days after the alleged unlawful employment practice occurred).
“A discrete retaliatory or discriminatory act ‘occurred’ on the day that it ‘happened.’” Nat’l
R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 110 (2002). A pay-setting decision is a discrete act
and the period for filing an EEOC charge begins when the act occurs. Ledbetter v. Goodyear Tire
& Rubber Co., Inc., 127 S. Ct. 2162, 2165 (2007). Accordingly, Vaughn’s claims that she did not
receive the Survey and Easements process owner position in 1996, was paid less than Eiler as a result
of his promotion, and did not receive the same overtime pay as other exempt male employees, are
time-barred because they occurred more than 300 days before Vaughn filed her EEOC charge.
Vaughn alleges that these claims are not barred because she did not discover the
discrimination regarding the promotion, pay, and overtime until June 2002, when she reviewed
employee job descriptions. The Supreme Court has “previously declined to address whether Title
VII suits are amenable to a discovery rule.” Id. at 2177 n.10. Even were we to agree that the
discovery rule should apply in Title VII cases, this would not be the case in which to announce it.4
Vaughn reasonably should have discovered any discrimination after she did not receive the position
in 1996. Although she claims she was told that Eiler had not received a promotion, it is simply
incomprehensible to believe that she had no idea Eiler had received a higher, supervisory
position—particularly given that she reported to him, see J.A. at 80-81, 290, 292-95. A diligent
4
Accordingly, we express no opinion today as to the applicability of the discovery rule in
Title VII cases.
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employee would have discovered discrimination or a disparity in pay at that point. Because the
discovery rule would not save Vaughn’s untimely claims, the district court properly granted
summary judgment to LWC.5
C. Disparate Treatment
Title VII of the Civil Rights Act of 1964 makes it “an unlawful employment practice for an
employer . . . to discriminate against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such individual’s . . . sex.” 42 U.S.C. § 2000e-
2(a)(1). Aside from her untimely claims, Vaughn alleges that LWC discriminated against her
because of her sex when it altered her job title and, as a result, denied her Leadership Institute
training.6
A plaintiff may establish discrimination by either direct or circumstantial evidence. Grizzell
v. City of Columbus Div. of Police, 461 F.3d 711, 719 (6th Cir. 2006). Direct evidence is “evidence
that proves the existence of a fact without requiring any inferences.” Id. It is evidence which, “if
5
Even if her claims are timely, Vaughn cannot make out a prima facie case of discrimination
based on LWC’s failure to promote her to the process owner position. To establish a prima facie case
of discrimination based on a failure to promote, a plaintiff must show that 1) she is a member of a
protected class; 2) she applied and was qualified for the promotion; 3) she was considered for and
denied the promotion; and 4) other employees of similar qualifications who were not members of
the protected class received promotions. Grizzell v. City of Columbus Div. of Police, 461 F.3d 711,
719 (6th Cir. 2006). Vaughn neither was qualified nor applied for the position, and therefore cannot
make out a prima facie case. She has also failed to present any evidence that the requirements of the
position were drafted in a discriminatory way so as to prevent her from applying.
6
Vaughn also argued before the district court that her work was outsourced and that she did
not receive the position of Business System Owner of Supplying Customer Service in 2001. Because
she has not challenged either of these actions on appeal, we decline to address them.
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believed, requires the conclusion that unlawful discrimination was at least a motivating factor in the
employer’s actions.” Jacklyn v. Schering-Plough Healthcare Prods. Sales Corp., 176 F.3d 921 (6th
Cir. 1999). Vaughn argues that the evidence of Eiler’s specific bias against females, the company’s
own reference to such a “perceived bias,” and the OFCCP’s findings constitute direct evidence of
discrimination. At best, however, the company’s finding only acknowledges that Eiler “periodically”
made inappropriate comments that left a “‘perception’ of unacceptable biases towards certain
individuals,” J.A. at 240; it does not concede that an objectively discriminatory environment actually
existed for Vaughn individually. And although the NORI may acknowledge a discriminatory
environment at LWC generally, its findings do not specifically refer to Vaughn and it defers any
individual findings to the federal court. J.A. at 297. Because this evidence does not require us to
conclude that Vaughn was subjected to discrimination, it is not direct evidence.
In the absence of direct evidence, we analyze discrimination claims under the burden-shifting
framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Vincent v. Brewer
Co., 514 F.3d 489, 494 (6th Cir. 2007). Where, as here, a case is at the summary judgment stage,
“the plaintiff must submit evidence from which a reasonable jury could conclude both that she has
established a prima facie case of discrimination and that the defendant’s legitimate,
nondiscriminatory reason for its action, if any, is pretext for unlawful discrimination.” Id.; see also
McDonnell Douglas, 411 U.S. at 802-04. To establish a prima facie case of disparate treatment, a
plaintiff must show that 1) she is a member of a protected class; 2) she was subjected to an adverse
employment decision; 3) she was qualified for the position; and 4) she was replaced by a person
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outside the protected class, or treated differently than similarly situated non-protected employees.
Vincent, 514 F.3d at 494.
Vaughn has failed to establish that the change in her job title from administrator to
coordinator in 2002, and her resulting inability to attend Leadership Institute training, resulted in any
adverse employment action. An adverse employment action is “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.” Baxter Healthcare Corp.,
533 F.3d at 402 (quoting Burlington Indus. v. Ellerth, 524 U.S. 742, 761 (1998)). It must be “more
disruptive than a mere inconvenience or alteration of job responsibilities.” Michael v. Caterpillar
Fin. Servs. Corp., 496 F.3d 584, 594 (6th Cir. 2007). Here, the terms and conditions of Vaughn’s
employment did not change after the change in her job title. She admitted that her duties, salary, and
benefits remained the same. Vaughn Dep. 194-95, J.A. at 522. And although “a deprivation of
increased compensation as the result of a failure to train constitutes an adverse employment action,”
Clay v. United Parcel Serv., Inc., 501 F.3d 695, 710 (6th Cir. 2007), Vaughn has failed to present
any evidence that she was passed up for promotions because of her inability to attend the Leadership
Institute training. She only alleges that the training “would have . . . allow[ed] me to be able to be
promoted to another position . . . when and if something else opened up.” Vaughn Dep. 192, J.A.
at 521. But her own conclusory assertions as to the value of the training and her inability to receive
promotions are insufficient to survive summary judgment. See Arendale v. City of Memphis, 519
F.3d 587, 605 (6th Cir. 2008).
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Even were we to assume, for the sake of argument, that Vaughn has established a prima facie
case, LWC has nonetheless offered legitimate, nondiscriminatory reasons for its actions. The
employer need only articulate a nondiscriminatory rationale; it need not prove it. Hartsel v. Keys,
87 F.3d 795, 800 (6th Cir. 1996). Here, LWC contends that Vaughn’s new job title was simply a
re-tooling of job descriptions based on a change in management.
Further, Vaughn cannot demonstrate that LWC’s legitimate reasons for its actions were in
fact only a pretext for intentional discrimination. To do so, the plaintiff must show that the
employer’s proffered reasons 1) had no basis in fact, 2) did not actually motivate the challenged
conduct, or 3) were insufficient to motivate the challenged conduct. Grace v. USCAR & Bartech
Tech. Servs., LLC, 521 F.3d 655, 677 (6th Cir. 2008); Cicero v. Borg-Warner Auto., Inc., 280 F.3d
579, 589 (6th Cir. 2002). Vaughn does not address the issue of pretext on appeal. She has not
offered any proof that LWC’s reason lacks a factual basis, was insufficient to motivate its actions,
or was anything but the product of sound and honest business judgment. She has also failed to offer
evidence that LWC’s actions had anything to do with her gender. Ultimately, her theory of gender
discrimination is based solely on her unsupported speculations of an anti-female bias at LWC. That
is not enough to establish pretext or to survive summary judgment. See Sutherland v. Mich. Dep’t
of Treasury, 344 F.3d 603, 623 (6th Cir. 2003). Accordingly, we affirm the grant of summary
judgment in favor of LWC with respect to Vaughn’s disparate treatment claim.
D. Hostile Work Environment
Title VII also prohibits conduct which is “sufficiently severe and pervasive to alter the
conditions of the victim’s employment and create an abusive working environment.” Meritor Sav.
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Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986); see also Harris v. Forklift Sys., Inc., 510 U.S. 17, 21
(1993). To establish a prima facie case of hostile work environment, a plaintiff must prove that: 1)
she is a member of a protected class; 2) she was subjected to unwelcome harassment; 3) the
harassment was based upon her protected status; 4) the harassment unreasonably interfered with her
work performance by creating a hostile, offensive, or intimidating work environment; and 5) there
is a basis for employer liability. Thornton v. Fed. Express Corp., 530 F.3d 451, 455 (6th Cir. 2008).
LWC first argues that any alleged harassment had nothing to do with Vaughn’s sex. Title
VII protects any unequal treatment that would not have occurred but for the employee’s sex, even
if the conduct is non-sexual. Williams v. Gen. Motors Corp., 187 F.3d 553, 565 (6th Cir. 1999).
Here, however, many of the incidents Vaughn seeks to include in her hostile environment claim
occurred after she reported Eiler for his “bigot” comment. For example, she claims that Eiler “stared
her down” in the parking lot and at the retirement party specifically because of her complaints of
discrimination. This suggests that—if anything—much of Eiler’s conduct was retaliatory, not
gender-based. See Morris v. Oldham County Fiscal Court, 201 F.3d 784, 790-91 (6th Cir. 2000)
(refusing to include alleged retaliatory conduct in the hostile work environment calculus because
plaintiff did not suggest the conduct was committed “because of sex”).
Even if some the alleged harassment was based on Vaughn’s sex, it still must be severe and
pervasive to be actionable. In evaluating the severity and pervasiveness of workplace harassment,
we consider the totality of the circumstances. See Williams, 187 F.3d at 562; see also Harris, 510
U.S. at 23. Relevant circumstances include the “frequency of the discriminatory conduct; its
severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and
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whether it unreasonably interferes with an employee’s work performance.” Harris, 510 U.S. at 23.
Viewed as a whole, the environment must be both objectively and subjectively offensive, hostile,
and abusive. Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998). “[S]imple teasing, offhand
comments, and isolated incidents (unless extremely serious) will not amount to” a hostile work
environment. Id. at 788. Rather, “conduct must be extreme to amount to a change in the terms and
conditions of employment.” Id. We have consistently rejected any invitation to convert Title VII
into a “code of workplace civility.” Grace, 521 F.3d at 679.
Viewing Vaughn’s allegations as a whole, we agree with the district court that the incidents
were not so severe and pervasive that a reasonable person would find her work environment hostile
and abusive. Eiler’s actions and comments appear to have been isolated incidents that occurred over
a period of ten years. See Morris, 201 F.3d at 790 (holding that several dirty jokes, a verbal sexual
advance, a one-time reference to plaintiff as “Hot Lips,” and comments about plaintiff’s state of
dress were not sufficiently severe and pervasive). Moreover, Vaughn has not presented evidence
indicating that any of the alleged incidents of harassment interfered with her work performance.
While Eiler’s presence on Vaughn’s floor after he was reassigned in 2002 may have been
uncomfortable, he was relocated within a reasonable time. Vaughn even testified that during that
time she was not prevented from performing her job duties. Finally, Vaughn’s general allegations
of “open mockery and verbal abuse” and the “hostile” and “harassing” environment that was
“pervasive” are not enough to survive summary judgment. See Arendale, 519 F.3d at 605 (holding
that plaintiff’s conclusory assertions of continuous “racial harassment” were insufficient).
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Vaughn attempts to bolster her hostile work environment claim with the OFCCP’s general
findings of a hostile work environment and the company’s own findings of Eiler’s “perceived bias”
against females. LWC contends that the OFCCP’s findings are inadmissible under Rule 803(8)(C)
because the sources of information and the circumstances of the investigation indicate a lack of
trustworthiness. Yet, even assuming the NORI is admissible as a public record, see Chandler v.
Roudebush, 425 U.S. 840, 863 n.39 (1976), it does not specifically address whether the environment
was hostile—both subjectively and objectively—for Vaughn individually. And it specifically
“defer[s] any findings as to Ms. Vaughn’s individual claims to the results of the U.S. District Court’s
opinion.” J.A. at 298. Further, the company’s own finding of a “‘perception’ of unacceptable
biases” by Eiler, creating “an adversarial environment especially among female employees,” J.A. at
240-41, indicates that LWC may have acknowledged the subjective perceptions of some of its female
employees, but it does not admit that an objectively hostile, severe, and pervasive atmosphere existed
for Vaughn individually. Even considering this evidence, Vaughn has not satisfied her burden of
showing a hostile work environment, and summary judgment for LWC was therefore proper.
E. Retaliation
Under Title VII, 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.” 42 U.S.C. § 2000e-
3(a). Vaughn claims eight incidents of retaliation: 1) denying her a promotion to process owner after
Eiler was reassigned; 2) changing her job title; 3) terminating her health benefits under the
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Consolidated Omnibus Budget Reconciliation Act (“COBRA”) in May 2004;7 4) Eiler’s actions in
the parking lot and other intimidating behavior; 5) the overall threatening work environment; 6) the
negative evaluation in October 2002; 7) Huber’s company-wide emails regarding Vaughn’s lawsuit
in September 2003; and 8) her May 2004 discharge.
In the absence of direct evidence, we review Vaughn’s retaliation claims under the
McDonnell Douglas framework. Weigel v. Baptist Hosp., 302 F.3d 367, 381 (6th Cir. 2002). To
establish a prima facie case of retaliation, a plaintiff must show that: 1) she engaged in activity
protected by Title VII; 2) the employer knew of her exercise of protected rights; 3) the employer
took a materially adverse action against the plaintiff or subjected her to severe and pervasive
retaliatory harassment; and 4) there was a causal connection between the protected activity and the
adverse action. Abbott v. Crown Motor Co., Inc., 348 F.3d 537, 542 (6th Cir. 2003).
Many of the retaliatory acts Vaughn alleges are insufficient to constitute materially adverse
actions. A materially adverse action in the retaliation context is not limited to those actions that
affect the terms and conditions of employment, or even acts that occur in the workplace; it is
sufficient to show that the action would have “dissuaded a reasonable worker from making or
supporting a charge of discrimination.” Burlington N. & Santa Fe. Ry. Co. v. White, 548 U.S. 53, 68
7
The district court refused to consider Vaughn’s claim regarding her COBRA benefits
because she raised it for the first time in her response to LWC’s motion for summary judgment.
Although that likely amounted to a waiver of the argument and a failure to preserve it for appeal, see
Scottsdale Ins. Co. v. Flowers, 513 F.3d 546, 553 (6th Cir. 2008), Vaughn’s claim of retaliation
based on the denial of benefits fails on the merits as well.
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(2006). A materially adverse action does not include trivial harms, such as “petty slights or minor
annoyances that often take place at work and that all employees experience.” Id.
Vaughn first argues that it was retaliatory for the company to deny her a promotion to process
owner after Eiler was reassigned in October 2002. She claims she was never considered for this
position, but there is no evidence that she applied for it. Not receiving a promotion for which one
did not apply would not dissuade a reasonable worker from engaging in protected conduct, and
accordingly does not constitute a materially adverse action.
Several of Vaughn’s other allegedly retaliatory acts do not rise to the level of a materially
adverse action. “[M]arkedly lower performance-evaluation scores that significantly impact an
employee’s wages or professional advancement” may be materially adverse actions. Halfacre v.
Home Depot, U.S.A., Inc., 221 Fed. Appx. 424, 433 (6th Cir. 2007); see also James v. Metro. Gov.
of Nashville, 243 Fed. Appx. 74, 79 (6th Cir. 2007). But Vaughn has not shown that the negative
performance evaluation she received in October 2002 significantly affected her salary or professional
advancement. Further, Huber’s company-wide emails simply informed LWC employees of the
lawsuit and emphasized the company’s commitment to diversity; they would not have dissuaded a
reasonable worker from filing a charge. Eiler’s presence on Vaughn’s floor for one month may have
been uncomfortable, but he was eventually relocated. And the few times he expressed his anger to
Vaughn were isolated incidents. Vaughn has not presented enough evidence to show that these
incidents were so important as to dissuade a reasonable worker from making or supporting a charge
of discrimination. Nor has she shown that, even viewing them as a whole, she was subjected to
severe and pervasive retaliatory harassment. See Morris, 201 F.3d at 793 (finding retaliatory
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No. 07-6234
Vaughn v. Louisville Water Co.
harassment where plaintiff’s supervisor visited her department over fifteen times, called her over
thirty times, followed her home from work, and threw nails on her driveway).
Even if she can show that the change in her job title, denial of COBRA benefits, and
discharge resulted in materially adverse actions, Vaughn must produce evidence of a causal nexus
between those actions and her protected activity. Temporal proximity is usually not enough to show
causation. Nguyen v. City of Cleveland, 229 F.3d 559, 566-67 (6th Cir. 2000); Cooper v. City of N.
Olmstead, 795 F.2d 1265, 1272 (6th Cir. 1986). “Where an adverse employment action occurs very
close in time after an employer learns of a protected activity,” however, temporal proximity may be
enough. Mickey v. Zeidler Tool & Die Co., 516 F.3d 516, 525 (6th Cir. 2008). But “where some
time elapses between when the employer learns of a protected activity and the subsequent adverse
employment action, the employee must couple temporal proximity with other evidence of retaliatory
conduct to establish causality.” Id. In Mickey, the plaintiff was found to have satisfied his burden
of proving causation where his employer fired him the very day it learned of his EEOC charge. Id.
at 526.
We are not convinced that the temporal proximity between several of the allegedly adverse
actions and any of Vaughn’s protected conduct is sufficient to give rise to an inference of causation.
Vaughn received a letter regarding the termination of her COBRA benefits on May 3, 2004, seven
days before she filed the OFCCP complaint. J.A. at 249. She was also discharged before she filed
the OFCCP complaint, because she referred to her discharge in the complaint itself. J.A. at 231. In
addition, the discharge and denial of benefits occurred approximately one and a half years after
Vaughn filed her EEOC charge and approximately eight months after she filed suit in federal court.
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In contrast to the same-day firing of the employee in Mickey, these lengthy gaps are insufficient, on
their own, to create a reasonable inference of causation. See Hamilton v. Starcom Mediavest Group,
Inc., 522 F.3d 623, 629-30 (6th Cir. 2008) (holding that a nine-month gap, standing alone, is
insufficient). Vaughn’s job title was changed after she returned to work in October 2002,
approximately four months after she had complained to LWC management. It is a closer call
whether this four-month gap is sufficient to show causation after Mickey. See Cooper, 795 F.2d at
1272 (holding four months insufficient prior to Mickey); Goller v. Ohio Dept. of Rehab. & Corr., 285
Fed. Appx. 250, 257 (6th Cir. 2008) (holding two-month gap sufficient after Mickey). We need not
make that call today, however, because even if Vaughn’s is one of those few cases in which temporal
proximity is enough, LWC has offered legitimate, non-retaliatory reasons for its actions and Vaughn
is unable to show that they are pretextual.
Assuming without deciding, then, that Vaughn has established a prima facie case of
retaliation, LWC has produced legitimate business reasons for its actions. LWC claims the change
in Vaughn’s job title was simply a re-tooling of job descriptions based on a change in management.
The company discharged her because she did not return to work after she exhausted all of her
medical leave and vacation time. Finally, it terminated her COBRA benefits because she stopped
sending her premium payments to LWC.
And ultimately, as with her claims of disparate treatment, Vaughn cannot disprove LWC’s
proffered reasons or present evidence that they were insufficient to motivate the company’s actions.
“[A]s long as an employer has an honest belief in its proffered nondiscriminatory reason” for taking
an adverse employment action, “the employee cannot establish that the reason is pretextual simply
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No. 07-6234
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because it is ultimately shown to be incorrect.” Majewski v. Automatic Data Processing, Inc., 274
F.3d 1106, 1117 (6th Cir. 2001). “An employer has an honest belief in its rationale ‘when it
reasonably relied on the particularized facts that were before it at the time the decision was made.’”
Caterpillar Fin. Servs. Corp., 496 F.3d at 599 (quoting Majewski, 274 F.3d at 1117). The key
inquiry is whether the employer made a “reasonably informed and considered decision,” not whether
the decisional process was optimal or “left no stone unturned.” Id. at 598-99 (quoting Smith v.
Chrysler Corp., 155 F.3d 799, 807 (6th Cir. 1998)).
Here, Vaughn has failed to submit evidence showing that the allegedly retaliatory actions
were anything but legitimate and honest business decisions. As to the denial of COBRA benefits,
Vaughn admitted that “I cannot prove that my checks were sent and received (and should have sent
them with return receipt coverage).” J.A. at 250. Regarding her discharge, Vaughn claims LWC did
not notify her that she would be discharged if she did not return to work in September 2003. But she
admits she knew she was expected to return to work on that date. Whether, as she argued, she could
physically return to work is irrelevant. Based on all of the facts before LWC, the company had a
reasonable basis and an honestly held belief that Vaughn’s absence from work was grounds for
discharge.
Moreover, Vaughn has failed to present evidence—aside from unsupported, conclusory
assertions—indicating that retaliation was the true reason for LWC’s actions. We conclude,
therefore, that LWC was entitled to summary judgment on Vaughn’s retaliation claim.
III
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No. 07-6234
Vaughn v. Louisville Water Co.
Because Vaughn has failed to establish a genuine issue of material fact on her claims of
disparate treatment, hostile work environment, and retaliation, we AFFIRM the district court’s grant
of summary judgment in favor of LWC.
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