United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 21, 2009 Decided April 9, 2010
No. 08-7097
CATHERINE GAUJACQ,
APPELLANT
v.
EDF, INC., ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:05-cv-00969)
Carla D. Brown argued the cause for appellant. With her
on the briefs were Elaine Charlson Bredehoft and Kathleen Z.
Quill.
Laura B. Hoguet argued the cause for appellees EDF, Inc.,
et al. With her on the brief was Dorothea W. Regal.
Morgan D. Hodgson was on the brief for appellee Christian
Nadal.
Before: HENDERSON, Circuit Judge, and EDWARDS and
WILLIAMS, Senior Circuit Judges.
2
Opinion for the Court filed by Senior Circuit Judge
EDWARDS.
EDWARDS, Senior Circuit Judge: Appellant Catherine
Gaujacq filed a complaint in District Court against her former
employers, Electricité de France, S.A. (“EDF”) and Electricité
de France International North America, Inc. (“EDFINA”),
claiming violations of Title VII of the Civil Rights Act of 1964
(“Title VII”), 42 U.S.C. § 2000e et seq., the District of
Columbia Human Rights Act (“DCHRA”), D.C. CODE § 2-
1401.01 et seq., and the Equal Pay Act, 29 U.S.C. § 206(d), and
asserting several common law claims. Gaujacq also filed a
complaint against Christian Nadal, who succeeded her in the
positions that she had held in EDF and EDFINA, alleging that
Nadal aided and abetted EDF’s discrimination and retaliation in
violation of the DCHRA, tortiously interfered with her
contractual and business relations, and defamed her. The
District Court granted summary judgment in favor of appellees
on all counts. See Gaujacq v. Electricite de France Int’l N. Am.,
Inc., 572 F. Supp. 2d 79, 84 (D.D.C. Aug. 21, 2008).
Appellant does not contest the District Court’s awards of
summary judgment for the appellees on the tortious interference
claim against EDF and the defamation claims against EDF and
Nadal. She does, however, seek review of the District Court’s
summary judgment against her on her remaining Title VII,
DCHRA, Equal Pay Act, and common law claims.
We affirm the District Court’s summary judgment in favor
of EDF on appellant’s Title VII and DCHRA gender-based
employment discrimination claims, and its summary judgment
in favor of Nadal on the related aiding and abetting
discrimination claims. The District Court correctly concluded
that no reasonable jury could find that the nondiscriminatory
business reasons given by EDF to explain company actions
relating to appellant’s employment were a pretext for gender-
based discrimination. We also affirm the District Court’s
3
summary judgment in favor of EDF on appellant’s Equal Pay
Act claim. The District Court correctly found that any
differential in pay between appellant and Nadal was based on
factors other than sex. We further affirm the District Court’s
summary judgment in favor of EDF on appellant’s retaliation
claim and summary judgment in favor of Nadal on the related
aiding and abetting claims. A reasonable jury could not infer
from all the evidence that EDF’s legitimate, nondiscriminatory
business decisions were retaliation against appellant; nor has
appellant shown that a disputed negative comment made to her
by an EDF official was “harmful to the point that [it] 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). Finally, we affirm the District
Court’s judgments against appellant on all but one of her
remaining common law claims. Appellant’s complaint asserts
a breach of contract claim against EDF due to the employer’s
alleged failure to reimburse her for certain business expenses.
Because the District Court never addressed this issue, we
remand the case to allow the trial court to consider the matter in
the first instance. Appellant’s remaining claims were properly
dismissed.
I. BACKGROUND
A. Factual Background
The facts in this case are amply drawn in the District
Court’s opinion. See Gaujacq, 572 F. Supp. 2d at 83-86.
Therefore, we will focus on the salient undisputed, material
facts, see FED. R. CIV. P. 56(c), to amplify our judgment.
Appellee EDF is a French corporation that generates and
supplies electricity in France and other countries. Previously a
state-owned company, EDF became a private corporation in
November 2004 and first sold shares to the public in 2005.
EDF’s wholly owned subsidiary, EDFINA, functions as EDF’s
4
representative in Washington, D.C. After oral argument in this
case, EDFINA merged into EDF Development – now known as
EDF Inc. – which remains wholly owned by EDF.
Appellant Catherine Gaujacq was hired by EDF in 1980
after she graduated from engineering school. She continued to
work for EDF until she was terminated on January 6, 2005.
Gaujacq earned a number of promotions during her tenure with
EDF. Her first management position came in 1994, when she
became head of operations at a French nuclear plant. Gaujacq
was the first woman in France to achieve such a position.
Christian Nadal was hired by EDF as a high-level executive
in 1988. Before coming to EDF, Nadal had served for four
years as the General Secretary for the French National Coal
Board. In addition to holding a number of top management
positions at EDF, Nadal served on the company’s Executive
Committee from 1995 to 1999. From 1999 to 2001, he served
as the CEO of EDENOR, an Argentinian energy company in
which EDF held an equity interest.
During the time when Gaujacq worked at EDF, the salaries
of high-level executives were determined pursuant to a pay
grade system. In 2000, EDF adopted the designations R-1
through R-4 (with R-1 as the highest rank) to classify executives
under the pay grade system. A number of elements – including
“the level of experience of [a] person within the company and
outside of the company” – were taken into account to determine
whether an executive was classified R-1 under the pay grade
system. Dep. of Patrick de Botherel, EDF’s Director of
Executive Compensation and Benefits, at 45 (Mar. 23, 2006),
reprinted in 3 Joint Appendix (“J.A.”) 1073. Only 50 people out
of EDF’s more than 160,000 employees held the R-1 rank.
Nadal, who was already a senior executive when the R-1 to R-4
ranking system was established, was classified R-1.
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Gaujacq was promoted to the senior executive level in 2000
and classified R-3 under the pay grade system. She was
appointed to serve as Délégué Général (General Delegate) for
the United States and Canada, the company’s top North
American position, and President and Treasurer of EDFINA.
Gaujacq’s “substantial experience” in the area of “nuclear
energy” made her “well-suited for EDF’s goal[s]” in the United
States at the time: “to study the U.S. energy developments,
reinforce [EDF’s] reputation for nuclear expertise within the
U.S. energy industry community and position [the company] for
possible business involvement in the nuclear area in the United
States.” Decl. of Yann Laroche, EDF’s General Manager of
Human Resources in 2003 and 2004 and a member of its
Executive Committee, ¶¶ 7-8 (Oct. 12, 2006), reprinted in 4 J.A.
1687-88. Gaujacq signed a three-year contract with EDF (the
“2000 Expatriate Contract”), with an option to extend for an
additional year by mutual consent. As part of her new job
assignment, Gaujacq served as EDFINA’s representative to
NuStart Energy Development, LLC (“NuStart”), a consortium
of energy companies working toward developing a nuclear
energy plant that could be built within U.S. regulatory
constraints.
When Gaujacq assumed her new positions in 2000, it was
standard practice for EDF to rotate executives through its top
positions in Washington, D.C. In the decade preceding
Gaujacq’s 2000 promotions, four executives had served as both
the head of EDF’s delegation in Washington, D.C. and President
of EDFINA. Typically, these executives served for a term of
two to four years, before moving on to new positions. Gaujacq
sought to break this practice when she requested a new three-
year contract in January 2003. However, EDF officials declined
and merely extended her 2000 Expatriate Contract for one
additional year, with a contract expiration of July 31, 2004.
6
In December 2003, EDF’s President, Chairman, and CEO,
Francois Roussely, offered Nadal the position of General
Delegate for North America. By the end of 2003, EDF’s
strategic goals and business plans with respect to the United
States had changed. The company “wanted to increase its
profile in the United States” and, to that end, it sought to “send
a top-level executive to Washington as its ‘ambassador’ . . . to
deal with the strategic, financial[,] and political issues”
associated with its goal of entering into commercial ventures
with energy partners in the United States. Laroche Decl. ¶ 12,
4 J.A. 1688-89. Company officials considered Nadal to be well
qualified to assume these responsibilities. After accepting
Roussely’s offer, Nadal was appointed EDF’s General Delegate
for North America on January 1, 2004.
Gaujacq knew by January 28, 2004 that Nadal had been
appointed to the General Delegate position and she had reason
to know that the person in that position typically was appointed
President of EDFINA. Gaujacq claims that EDF’s Chief
Operating Officer (“COO”), Gerard Creuzet, told her in January
2004 that she would remain President of EDFINA until at least
2005. In truth, however, Gaujacq had no such agreement with
EDF to extend her term as President of EDFINA. Gaujacq
nonetheless acted on her own accord and sent emails to the head
of EDF’s Americas Branch (to whom she reported) expressing
her understanding that Nadal would come on board to develop
EDFINA’s knowledge of the gas industry, while she would
remain in charge of EDFINA and NuStart.
During the first half of 2004, there was mounting tension
between Gaujacq and Nadal. Gaujacq continued to demand her
own way even though she knew that she had no agreement with
EDF to continue as General Delegate or President of EDFINA.
After Gaujacq and Nadal met for the first time in person on
February 25, 2004, Gaujacq introduced him to the Washington
office as a senior advisor focusing on gas and equity markets.
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Nadal promptly contacted top officials in EDF to clear up any
confusion over their positions. By early March, Nadal indicated
that he was having trouble working with Gaujacq, because she
continued to express her belief that Nadal’s assignment in
Washington, D.C. was limited to the gas market and certain
financial issues. Nadal again requested “prompt and strong
clarification” from EDF officials regarding his position. Email
from Christian Nadal to François Metais (Mar. 10, 2004)
(translation), reprinted in 3 J.A. 1379. Nadal made it clear that
he could not share responsibilities with Gaujacq. Id.
On March 22 and 23, Gaujacq met with EDF’s leadership
in Buenos Aires. She was clearly told that Nadal would be
President of EDFINA and that she would need to prepare a new
mission for herself. On March 25, Gaujacq sent COO Creuzet
a proposal pursuant to which she would be in charge of NuStart
and report directly to the heads of EDF’s Americas Branch and
its Energy Branch – rather than to Nadal – as part of a new
three-year expatriate assignment in Washington. But there are
no facts showing that EDF and Gaujacq ever agreed on this
arrangement. Creuzet initially told Gaujacq that her proposal
was “well in line with our discussions last week in Buenos-
Aires,” that he had “no particular comments,” and that he would
“forward it to [Laroche] to get his comments.” Email from
Gerard Creuzet to Yann Laroche (Mar. 29, 2004) (translation),
reprinted in 3 J.A. 1352. The next week, Creuzet proposed an
arrangement different from the one sought by Gaujacq. Creuzet
and Gaujacq continued to negotiate over her position with EDF
through a series of emails. However, Gaujacq never secured an
agreement from EDF to extend her contract for another three
years, as she preferred. And Nadal continued to express his
desire to terminate Gaujacq’s activity in his office, stating that
she had created a situation that made it impossible for the two to
collaborate. Although Gaujacq was never given a three-year
contract extension, EDF officials attempted to accommodate her
8
preference to remain in the United States by offering her a
position as a Vice President of EDFINA.
On May 31, Gaujacq took the title of Vice President of
EDFINA, a rank she shared with EDFINA’s other Vice
President, Bernard Dreux. Gaujacq retained her R-3 executive
classification, along with her existing salary and benefits. Nadal
officially took over as President of EDFINA the next day.
Nadal’s arrival in the United States precipitated further
deterioration in his relationship with Gaujacq. Beginning in
June, Gaujacq stopped coming into the EDFINA offices on a
regular basis. Gaujacq also sent an unauthorized memo to staff
purporting to assign responsibilities for gas and finance matters
to Nadal and nuclear matters to herself. Days later, Gaujacq left
a conference early and skipped a meeting with Nadal which had
been scheduled to discuss her responsibilities as Vice President
of EDFINA. Gaujacq initially claimed that she was forced to
miss the meeting to return to France to take care of her sick
mother-in-law, but this turned out to be a fabrication. Gaujacq
also kept confidential documents related to NuStart in her home
and refused to return the company documents to the EDFINA
offices. Meanwhile, Nadal had revoked Gaujacq’s authority to
sign checks for EDFINA and designated Dreux as the person
who would act as President in Nadal’s absence.
In July, Gaujacq complained in writing to top officials at
EDF that “Nadal tries, by all means, to prevent me from doing
my job and takes discriminatory measures against me.” Email
from Catherine Gaujacq to Francois Roussely and Gerard
Creuzet (July 22, 2004) (translation), reprinted in 4 J.A. 1496.
She indicated that she would “defend [her]self against [Nadal]
by filing a complaint,” id., and she also sent an email to Nadal
complaining of his treatment of her. Email from Catherine
Gaujacq to Christian Nadal (July 22, 2004), 5 J.A. 2296-97. She
further complained by phone to senior EDF officers. Gaujacq’s
notes reflect that in one such conversation, COO Creuzet told
9
her that he did “not have time to discuss the differences of views
between managers” and stated, “[y]our career is dead in EDF if
you file the claim.” Defs.’ Statements Pursuant to FED. R. CIV.
P. 56.1 and Local Rule 7(h) Ex. 70, reprinted in 4 J.A. 1498; see
also Email from Catherine Gaujacq to Gerard Creuzet, Yann
Laroche, and Fernando Ponasso (July 25, 2004), reprinted in 4
J.A. 1505 (describing threat). Gaujacq continued to seek a
three-year extension of her expatriation contract, demanding that
company officials sign the contract, that she not report directly
to Nadal, that Nadal “not interfere” with her mission, and that
Nadal reinstate her check-signing authority and ensure her equal
status and treatment with the other EDFINA Vice President,
Bernard Dreux. See Email from Catherine Gaujacq to Gerard
Creuzet, Yann Laroche, and Fernando Ponasso (July 25, 2004),
4 J.A. 1505-06. She also requested reimbursement for her legal
fees. See id.
At the end of July 2004, EDF officials elected to let
Gaujacq’s 2000 Expatriate Contact to expire, in part because of
the “very bad relationship” between Nadal and Gaujacq. Jean-
Louis Betouret, Gaujacq Nadal Situation (July 26, 2004),
reprinted in 4 J.A. 1511-13. EDF officials decided that they
would no longer tolerate Gaujacq’s demands that she be allowed
to freelance outside of the ambit of Nadal’s leadership. The
decision to let Gaujacq’s 2000 Expatriate Contract to expire was
approved by the company’s president. Id. at 4 J.A. 1513. The
decision was consistent with EDF’s standard practice of rotating
executives through its top positions in Washington, D.C.
Creuzet wrote Gaujacq a letter on July 27 confirming that
her assignment in Washington, D.C. would end as of August 1,
2004, i.e., at the expiration of her 2000 Expatriate Contract. The
letter stated that EDF would give Gaujacq an additional three
months to arrange her move back to France and that the
company expected her to start on November 1 at a position in
France in the Energy Department that was “‘appropriate to [her]
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level of responsibility and the experience that [she had]
acquired.’” Gaujacq, 572 F. Supp. 2d at 85 (quoting Defs. Ex.
74). The company invited her to continue discussions she had
started with the head of EDF’s Energy Branch earlier in 2004,
when he had offered her an important position working on
nuclear issues in France. The head of the Energy Branch in fact
called Gaujacq that day to discuss a project. Gaujacq conceded
that the project was “important” to EDF but “[n]ot really”
important “[f]or me.” Dep. of Catherine Gaujacq at 428 (Mar.
16, 2006), reprinted in 2 J.A. 919.
Gaujacq filed a complaint with the Equal Employment
Opportunity Commission several days later, on July 30, 2004.
In early September 2004, Gaujacq requested more information
from EDF about her potential new assignment in France. She
was advised by EDF that she would manage the development of
a new series of nuclear reactors. See Gaujacq, 572 F. Supp. 2d
at 85. Gaujacq claimed that the proposed new position was one
with lower responsibilities than her past three assignments at
EDF and that it “ha[d] no substance and [was] devised to
shel[ve] me.” Letter from Catherine Gaujacq to Bruno Lescouer
(Oct. 7, 2004) (translation), reprinted in 4 J.A. 1555. On
October 28, Gaujacq declined the new position, and she failed
to report to work as scheduled on November 2. EDF officials
met with her in December to discuss her situation, but no
satisfactory resolution of the issue was reached. Gaujacq was
terminated on January 6, 2005 after she persisted in refusing to
accept employment on the terms offered by the company.
B. Proceedings Below
On May 13, 2005, Gaujacq filed a complaint against EDF,
EDFINA, and Nadal, alleging that: (1) EDF and EDFINA (“the
company”) violated Title VII and the DCHRA by discriminating
against her based on sex, and that Nadal aided and abetted this
discrimination in violation of the DCHRA; (2) EDF and
EDFINA retaliated against Gaujacq for complaining of
11
discrimination in violation of Title VII and the DCHRA, and
that Nadal aided and abetted the company’s retaliation in
violation of the DCHRA; (3) that EDF and EDFINA violated the
Equal Pay Act; (4) that EDF and EDFINA tortiously interfered
with Gaujacq’s contractual relations with future employers and
that Nadal tortiously interfered with her contractual relations
with EDF; (5) that EDF and EDFINA breached portions of her
expatriate contract; (6) that EDF and EDFINA breached a duty
of good faith and fair dealing by willfully rendering imperfect
performance of her contracts with the company; and (7) that
EDF, EDFINA, and Nadal defamed her. See Compl. (May 13,
2005), reprinted in 1 J.A. 23-81.
Discovery closed in July 2006 and the defendants filed
motions for summary judgment on October 16, 2006. Gaujacq
moved in March 2008 for leave to supplement her opposition to
the defendants’ summary judgment motions and filed a motion
to compel discovery in April of that year. See Mot. and Mem.
for Leave to Supplement Pl.’s Opp’n to Def.’s Mot. for Summ.
J. (Mar. 5, 2008), reprinted in 7 J.A. 3227-31; Pl.’s Mot. to
Compel and for Sanctions (Apr. 23, 2008), reprinted in 7 J.A.
3372-73. Both motions were based on evidence that was
allegedly concealed by EDF and Nadal pertaining to Nadal’s
conduct while he worked in Argentina as the CEO of EDENOR.
The District Court granted summary judgment on all claims and
did not specifically address either of Gaujacq’s motions in its
order. See Gaujacq, 572 F. Supp. 2d at 83-84.
Gaujacq filed a timely appeal. She does not contest the
District Court’s grant of summary judgment on her tortious
interference with contract and business relations claims against
the company or on her defamation claims against the company
and Nadal. Gaujacq argues that the District Court erred in
dismissing her other claims, and also argues that the District
Court should have granted her motions to reopen discovery and
supplement her opposition to the summary judgment motions.
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II. ANALYSIS
A. Standard of Review
This court reviews the District Court’s grant of summary
judgment de novo. Haynes v. Williams, 392 F.3d 478, 481 (D.C.
Cir. 2004). “Summary judgment is appropriate only if ‘there is
no genuine issue as to any material fact and . . . the moving
party is entitled to a judgment as a matter of law.’” Id. (quoting
FED. R. CIV. P. 56(c)). “A dispute about a material fact is not
genuine unless the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Id. (internal
quotation marks omitted). In determining whether there are
genuine factual issues in dispute, the court draws all reasonable
inferences in favor of the nonmoving party. Wiley v. Glassman,
511 F.3d 151, 155 (D.C. Cir. 2007) (per curiam).
We review for abuse of discretion the motions for further
discovery and to supplement an opposition to summary
judgment. See Berkeley v. Home Ins. Co., 68 F.3d 1409, 1415
(D.C. Cir. 1995).
B. Equal Pay Act
Appellant first argues that the District Court erred in
granting summary judgment to appellee on her Equal Pay Act
Claim. We disagree. Where a plaintiff establishes a prima facie
case of disparate pay under the Equal Pay Act, a defendant can
avoid liability by pleading an affirmative defense justifying a
pay disparity if it is “pursuant to (i) a seniority system; (ii) a
merit system; (iii) a system which measures earnings by quantity
or quality of production; or (iv) a differential based on any other
factor other than sex.” 29 U.S.C. § 206(d)(1). The District
Court correctly found that EDF satisfied the fourth affirmative
defense. See Gaujacq, 572 F. Supp. 2d at 91. Gaujacq and
Nadal were paid according to their rank in EDF’s top-level
executive system, a pay scale that is based on factors other than
sex. See id. Although this system was based in part on
13
subjective factors, “subjectivity is permissible” in employment
decisions “provided that there are demonstrable reasons for the
decision, unrelated to sex.” EEOC v. Aetna Ins. Co., 616 F.2d
719, 726 (4th Cir. 1980). Moreover, EDF’s executive
compensation policy specifically states that “[e]xecutives who
hold positions at the same level do not necessarily receive the
same compensation, which will vary according to the level of
individual contribution achieved and also according to the
number of positions held within the same level.” Electricité de
France Executives Compensation Policy at 6 (translation),
reprinted in 4 J.A. 1828.
On the undisputed record in this case, there is no doubt that
the pay disparity between Nadal and Gaujacq was based on
factors other than sex. Nadal had substantially more
management experience than Gaujacq, including a stint on the
company’s Executive Committee between 1995 and 1999.
There is nothing in the record to suggest that he was unworthy
of the R-1 classification that he received in 2000. Indeed, Nadal
had been a senior executive for some time before 2000, so his
R-1 classification was hardly noteworthy. Nor is there anything
in the record to suggest that Gaujacq was undervalued when she
received an R-3 classification when she was first promoted into
the senior executive service in 2000. Furthermore, the record
indicates that EDF’s strategic goals and business plans with
respect to the United States were significantly changed and
upgraded at the time when Nadal was brought to Washington,
D.C. in 2004. Nadal was assigned to the Washington, D.C.
positions specifically because he was especially well qualified
to assume the new responsibilities that the company had in mind
for the General Delegate and President of EDFINA. In short,
the pay differential between Nadal and Gaujacq was justified
based on “experience, training or ability of an employee [which]
may justify salary differentials, provided they are not based
upon sex.” Aetna, 616 F.2d at 725. No reasonable jury could
find otherwise.
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C. Gender Discrimination
We also affirm the District Court’s grant of summary
judgment on appellant’s gender discrimination claims.
Appellant argues that a genuine issue of material fact exists as
to whether EDF’s asserted nondiscriminatory reasons for its
actions are pretextual, and that the District Court failed to
analyze her aiding and abetting claim against Nadal under the
DCHRA. Neither argument has merit.
Title VII prohibits discrimination by an employer against
“any individual” based on that individual’s “race, color, religion,
sex, or national origin.” 42 U.S.C. § 2000e-2(a). The DCHRA
contains a similar provision. See D.C. CODE § 2-1402.11(a).
The District Court found that Title VII applies to foreign
companies operating in the United States and protects aliens
working in the United States as well as U.S. citizens. See
Gaujacq, 572 F. Supp. 2d at 86-87. Appellees do not dispute
this.
Title VII and DCHRA discrimination claims are assessed
pursuant to the three-step framework set forth in McDonnell
Douglas Corp. v. Green. See 411 U.S. 792, 802-03, 807 (1973);
see also Howard Univ. v. Green, 652 A.2d 41, 45 & n.3 (D.C.
1994) (applying McDonnell Douglas framework to DCHRA
cases). In Brady v. Office of Sergeant at Arms, 520 F.3d 490
(D.C. Cir. 2008), we made it clear that when “an employer has
asserted a legitimate, non-discriminatory reason” for an alleged
adverse action, the District Court need only “resolve one central
question” when considering a motion for summary judgment:
“Has the employee produced sufficient evidence for a
reasonable jury to find that the employer’s asserted non-
discriminatory reason was not the actual reason and that the
employer intentionally discriminated against the employee on
the basis of race, color, religion, sex, or national origin?” Id. at
494. In this case, EDF proffered legitimate, nondiscriminatory
reasons for Gaujacq’s claimed adverse actions, and the District
15
Court properly analyzed Gaujacq’s discrimination claims under
the Brady framework. See Gaujacq, 572 F. Supp. 2d at 87.
On the record before us, no reasonable jury could find that
Gaujacq was a victim of discrimination based on her gender.
She was replaced in the positions of General Delegate and
President of EDFINA in the normal course of work, as her
contract expired. And she was treated no differently than the
persons who had preceded her in the positions of General
Delegate and President of EDFINA. Indeed, appellant was
favored when EDF assigned her to serve as a Vice President of
EDFINA in an effort to accommodate her desire to stay in
Washington, D.C. The company reassigned her to a high level
position in France only after her obstructionist behavior made it
clear that she would not work cooperatively with Nadal. And
she was terminated only after she refused her new assignment in
France. None of these employment actions resulted from
discrimination based on gender. And because EDF did not
discriminate against Gaujacq, it is clear that Nadal did not aid
and abet any unlawful discrimination. See Halberstam v. Welch,
705 F.2d 472, 477 (D.C. Cir. 1983).
D. Retaliation
Appellant next argues that the District Court erred in
rejecting her claims of retaliation under Title VII and the
DCHRA. She points to three instances in which she suffered
materially adverse actions that resulted in unlawful retaliation:
(1) when EDF officials allowed her 2000 Expatriate Contact to
expire at the end of July 2004 and reassigned her to a new
position in France; (2) when she was terminated on January 6,
2005 after she refused to accept her new assignment in France;
and (3) when Creuzet told her on July 23, 2004 that “[y]our
career is dead in EDF if you file a claim.” Appellant’s Br. at 35.
“Title VII’s antiretaliation provision forbids employer
actions that ‘discriminate against’ an employee . . . because he
16
has ‘opposed’ a practice that Title VII forbids or has ‘made a
charge, testified, assisted, or participated in’ a Title VII
‘investigation, proceeding, or hearing.’” Burlington, 548 U.S.
at 59 (quoting 42 U.S.C. § 2000e-3(a)). The DCHRA also
contains an anti-retaliation provision. See D.C. CODE § 2-
1402.61. As we recently explained in Jones v. Bernanke, 557
F.3d 670 (D.C. Cir. 2009),
retaliation claims based on circumstantial evidence . . .
trigger the familiar burden-shifting framework of
McDonnell Douglas. Under that framework, a plaintiff
must first establish a prima facie case of retaliation by
showing (1) that he engaged in statutorily protected
activity; (2) that he suffered a materially adverse action by
his employer; and (3) that a causal link connects the two.
If the plaintiff establishes a prima facie case, the burden
shifts to the employer to produce a legitimate,
nondiscriminatory reason for its actions. If the employer
does so, the burden-shifting framework disappears, and a
court reviewing summary judgment looks to whether a
reasonable jury could infer retaliation from all the evidence,
which includes not only the prima facie case but also the
evidence the plaintiff offers to attack the employer’s
proffered explanation for its action and other evidence of
retaliation.
Id. at 677 (citations and quotations omitted); see also Carpenter
v. Fed. Nat’l Mortgage Ass’n, 174 F.3d 231, 235-36 n.3 (D.C.
Cir. 1999) (applying McDonnell Douglas framework to DCHRA
retaliation claims). The Supreme Court has distinguished Title
VII’s anti-retaliation provision from its substantive anti-
discrimination provision, holding that a “materially adverse”
action for purposes of a retaliation claim is one that “could well
dissuade a reasonable worker from making or supporting a
charge of discrimination.” Burlington, 548 U.S. at 57; see also
Steele v. Schafer, 535 F.3d 689, 696 (D.C. Cir. 2008). In other
17
words, the proscription against retaliation sweeps more broadly
than the proscription against gender discrimination. See
Burlington, 548 U.S. at 66-67.
Applying these tests, we have no trouble in disposing of
appellant’s first two claims of alleged retaliation. The
undisputed evidence in the record indicates that EDF officials
elected to transfer Gaujacq to France when her contract expired,
in part because she effectively refused to cooperate with Nadal,
under whom she would have been assigned to work had she
remained in Washington, D.C. Gaujacq’s contract expired at the
end of July 2004 and she had no right to remain in Washington,
D.C. EDF elected to utilize Gaujacq’s nuclear power expertise
on a project in France. Gaujacq conceded that the project was
“important for the company” but “[n]ot really” important “[f]or
me.” Gaujacq Dep. at 428, 2 J.A. 919; see also Gaujacq, 572 F.
Supp. 2d at 90.
Given these facts, no reasonable jury could find that EDF
officials retaliated against Gaujacq when they elected to assign
her to a new and important position in France after her contract
expired. Likewise, EDF surely did not retaliate against Gaujacq
when they terminated her after she refused to work in France.
In short, we agree with the District Court that EDF proffered
legitimate, nondiscriminatory reasons for Gaujacq’s
reassignment and termination, and that Gaujacq offered nothing
to rebut this evidence to suggest that the company intended to
retaliate against her.
Appellant’s third claim of retaliation – Creuzet’s statement
that “[y]our career is dead in EDF if you file the claim” – also
fails. A threatening verbal statement, standing alone, might well
constitute a materially adverse action. However, in assessing
such a claim, Burlington emphasizes that “[c]ontext matters”
and that “the significance of any given act of retaliation will
often depend upon the particular circumstances.” Burlington,
548 U.S. at 69. Therefore, a statement that literally appears to
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be threatening is not necessarily a materially adverse action. An
employer’s words and other actions must be considered in
context to determine whether they would “dissuade a reasonable
worker” from filing a claim and thus result in actionable
retaliation. See id. at 57.
Gaujacq contends that Creuzet’s statement was a materially
adverse action sufficient to make out a prima facie case of
retaliation. We disagree. In the context of this case, a
reasonable worker in Gaujacq’s position would not have taken
Creuzet’s brief, fleeting, and unadorned verbal statement as an
act or threat of retaliation. Both before and after Creuzet’s
statement, top EDF officials went out of their way to
accommodate Gaujacq’s desire to stay in the United States,
despite her increasing insubordination and refusal to consider
any future employment decision that did not meet her precise
demands. Neither her contract nor company practice gave
Gaujacq any right to remain in Washington, D.C. once she
completed her term as General Delegate and EDFINA President.
Yet, EDF officials indulged her at every turn – first by extending
her contract by a year, then by negotiating with her to find a way
to allow her stay in Washington, D.C., and finally by creating a
Vice President’s position for her. But nothing that the company
did satisfied Gaujacq and she persisted in disparaging Nadal’s
authority and refusing to cooperate with him.
Creuzet’s disputed statement to Gaujacq came at a time in
late July when Gaujacq was telephoning company officials to
complain again about her situation with Nadal. Creuzet first
told her that he did “not have time to discuss the differences of
views between managers” and then stated, “[y]our career is dead
in EDF if you file the claim.” In this context – given all that the
company had done for her – Creuzet’s statement appears less a
threat than an expression of exasperation over Gaujacq’s
ongoing antics. After all, it was Creuzet who spent so much
time earlier in the year negotiating with Gaujacq in an effort to
19
find a way for her to remain in Washington, D.C. No reasonable
employee who received as much accommodation as did Gaujacq
could construe Creuzet’s statement as an unlawful retaliatory
threat. Therefore, in the “particular circumstances” of this case,
we hold that the verbal statement made by Creuzet did not
constitute a materially adverse action. Burlington, 548 U.S. at
69.
Because we uphold the District Court summary judgment
in favor of EDF on the retaliation claim, we likewise affirm the
summary judgment in favor of Nadal on the related aiding and
abetting claim. See Halberstam, 705 F.2d at 477.
E. Common Law Claims
Gaujacq also argues that the District Court erred in
dismissing her several common law claims: the company’s
alleged breach of (1) the 2000 Expatriate Contract; (2) a
purported 2004 expatriate contract; and (3) the duty of good
faith and fair dealing; as well as (4) Nadal’s alleged tortious
interference with contractual relations and business expectancy.
We affirm the dismissal of all of Gaujacq’s claims except one,
which we remand to the District Court for further consideration.
1. Breach of 2000 Expatriate Contract
Gaujacq claims two breaches of her 2000 Expatriate
contract. First, she argues that EDF failed to reimburse her for
business expenses that she incurred and for which she was
supposed to be compensated under the agreement. Second,
Gaujacq argues that EDF failed to conduct an interview with her
at least six months prior to her return to France, as required by
EDF’s “Guide to EDF Employees Working Abroad” (“Guide”),
which was incorporated by reference into the 2000 Expatriate
Contract.
We easily dispose of Gaujacq’s second claim. The Guide
provides that in order to “encourage the promotion of
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international mobility as part of career development,” it is
“appropriate” for management to conduct an “evaluative
discussion” at least six months before the expatriate returns to
France. Management Guide for Agents Working Abroad,
reprinted in 4 J.A. 1639. Even if this provision creates a
contractual obligation on the part of EDF’s management – a
doubtful claim at best – EDF satisfied its obligations. In the
early part of 2004, Gaujacq was in constant consultation with
top officials at EDF, several of whom discussed career options
with her and then labored to find a way to accommodate her
desire to stay in the United States.
The District Court failed to analyze Gaujacq’s first claim
for breach of contract, i.e., the company’s alleged failure to
reimburse her for expenses. Because this claim was raised
below and preserved on appeal, we remand to allow the District
Court to address this issue in the first instance. See
Saksenasingh v. Sec’y of Educ., 126 F.3d 347, 351 (D.C. Cir.
1997) (“If the District Court had original jurisdiction, but
dismissed for non-jurisdictional reasons, then it [may] maintain
supplemental jurisdiction at its discretion.”).
2. Breach of 2004 Expatriate Contract
Gaujacq also claims that EDF breached a purported “2004
Expatriate Contract,” arguing that a contract formed after she
emailed Creuzet details of her new mission in the United States
and Creuzet accepted the proposal on behalf of EDF on March
29, 2004. We reject this claim, because the facts do not support
it.
Assuming, as appellant argues, that District of Columbia
law applies, see Appellant’s Br. at 44, we agree with the District
Court that Gaujacq never reached a second contract with EDF to
continue working in the United States. See Gaujacq, 572 F.
Supp. 2d at 93. Under District of Columbia law, a valid and
enforceable contract requires (1) the intention of the parties to
21
be bound, and (2) agreement as to all material terms. Steven R.
Perles, P.C. v. Kagy, 473 F.3d 1244, 1249 (D.C. Cir. 2007).
During his negotiations with appellant, Creuzet made it clear
that he would forward Gaujacq’s proposal to the head of human
resources to get his comments. However, he never reached an
agreement with Gaujacq on behalf of EDF. Rather, Gaujacq and
Creuzet continued to negotiate over possible employment
arrangements. The undisputed evidence plainly shows that EDF
did not intend to be bound to Gaujacq’s proposed terms.
Therefore, no enforceable contract existed and summary
judgment on this claim is proper.
3. Breach of Duty of Good Faith and Fair Dealing
Appellant also asserts that the company breached its duty of
good faith and fair dealing with respect to the 2000 Expatriate
Contract and the purported 2004 agreement. As noted above,
EDF and Gaujacq never concluded a second expatriate contract
in 2004. However, assuming, as appellant argues, that District
of Columbia law applies, the 2000 Expatriate Contract
“contain[s] an implied duty of good faith and fair dealing, which
means that neither party shall do anything which will have the
effect of destroying or injuring the right of the other party to
receive the fruits of the contract.” Allworth v. Howard Univ.,
890 A.2d 194, 201 (D.C. 2006) (internal quotation marks and
citations omitted). EDF does not dispute this. Rather, EDF
argues that it did not engage in “‘bad faith’” by “‘violat[ing]
standards of decency, fairness or reasonableness,’” and that it
did not engage in any arbitrary or capricious action towards
Gaujacq. See id. at 201-02 (quoting Restatement (Second) of
Contracts § 205 cmt. a). We agree. As the District Court
explained, Gaujacq’s contract “came to its natural and agreed-
upon conclusion in July 2004,” and EDF never agreed to extend
the old contract or execute a new one. See Gaujacq, 572 F.
Supp. 2d at 93.
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4. Tortious Interference With Contract
Lastly, appellant contends that Nadal tortiously interfered
with the 2000 Expatriate Contract and the purported 2004
contract, or with a commercially reasonable business expectancy
with respect to the proposed 2004 contract. These claims fail.
A defendant can avoid liability for tortious interference with
contract and with business relations if the defendant can
establish that his conduct was legally justified or privileged.
Sorrells v. Garfinckel’s, Brooks Bros., Miller & Rhoads Inc.,
565 A.2d 285, 289-90 (D.C. 1989); see also McManus v. MCI
Commc’ns Corp., A.2d 949, 958 (D.C. 2000). District of
Columbia “law affords to a supervisor . . . a qualified privilege
to act properly and justifiably toward a fellow employee and that
employee’s true employers – those who have the power to hire
and fire.” Sorrells, 565 A.2d at 291. This privilege does not
apply where “the supervisor acts with malice for the purpose of
causing another employee’s contract to be terminated.” Id.
Gaujacq’s claims are meritless, because she points to no
evidence showing that Nadal’s motivation for his actions was
other than legally justified. Gaujacq’s insubordinate and
obstructionist conduct made it virtually impossible for Nadal to
work with her. He committed no legal wrong when he
expressed his dismay over the situation.
F. Gaujacq’s Procedural Motions
Appellant lastly takes issue with the District Court’s
implicit denials of her motions to supplement her opposition to
defendants’ motions for summary judgment and to compel
discovery. We think it is plain that the District Court meant to
deny appellant’s motions when it granted appellees’ motions for
summary judgment and dismissed the case. The District Court
did not abuse its discretion in denying appellant’s motions.
This court is “especially reluctant to interfere with district
court decisions regarding their own day-to-day operations,”
23
particularly the District Court’s “broad discretion in structuring
discovery.” Hussain v. Nicholson, 435 F.3d 359, 363 (D.C. Cir.
2006) (internal quotation marks and citation omitted).
Gaujacq’s motions claimed that reopening discovery would have
allowed her to defeat EDF’s claims that Nadal was more
qualified than Gaujacq and that he possessed a superior
performance record, because his tenure as CEO of EDENOR
“resulted in criminal prosecutions and a billion dollar loss to
EDF.” See Mem. in Support of Pl.’s Mot. to Compel and For
Sanctions at 2-3 (Apr. 23, 2008), 7 J.A. 3375-76; see also Mot.
and Mem. for Leave to Supplement Pl.’s Opp’n to Defs.’ Mot.
for Summ. J. at 4, 7 J.A. 3230. However, appellant’s
submissions make clear that the Argentinian investigation
showed no cause for prosecuting Nadal, who was not indicted.
See Mot. and Mem. for Leave to Supplement Pl.’s Opp’n to
Defs.’ Mot. for Summ. J. Ex. 12, reprinted in 7 J.A. 3340; Defs.’
Opp’n to Pl.’s Mot. for Leave to Supplement Ex. 1, reprinted in
7 J.A. 3370 (translated copy of plaintiff’s Exhibit 12).
Moreover, indictments brought against other EDENOR
employees were ultimately dismissed. See EDENOR Form 6-K
at 77 (Aug. 2007), Mot. and Mem. for Leave to Supplement
Pl.’s Opp’n to Defs.’ Mot. for Summ. J. Ex. 11, reprinted in 7
J.A. 3309. The District Court did not err in denying appellant’s
motions.
III. CONCLUSION
For the foregoing reasons, we remand this case to the
District Court to consider Gaujacq’s breach of contract claim
pertaining to the reimbursement of business expenses. We
affirm the judgment of the District Court as to all other claims.