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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 15, 2003 Decided December 12, 2003
No. 02-5261
CAROLYN TAYLOR,
APPELLANT
v.
LAWRENCE M. SMALL,
SECRETARY OF THE SMITHSONIAN INSTITUTION,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 99cv02035)
Barbara B. Hutchinson argued the cause and filed the
briefs for appellant.
Madelyn E. Johnson, Assistant U.S. Attorney, argued the
cause for appellee. On the brief were Roscoe C. Howard, Jr.,
U.S. Attorney, and R. Craig Lawrence and Edith M. Shine,
Assistant U.S. Attorneys.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Before: GINSBURG, Chief Judge, and SENTELLE and
HENDERSON, Circuit Judges.
Opinion for the Court filed by Chief Judge GINSBURG.
GINSBURG, Chief Judge: Carolyn Taylor brought suit
against her employer, the Secretary of the Smithsonian Insti-
tution, alleging the Smithsonian discriminated against her
upon the bases of her race, in violation of Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 1981a and
2000e–16, and of her ‘‘excessive weight,’’ in violation of § 504
of the Vocational Rehabilitation Act of 1973, as amended, 29
U.S.C. § 794. On cross motions for summary judgment, the
district court dismissed Taylor’s claim under the Rehabilita-
tion Act and granted summary judgment in favor of the
defendant on the Title VII claims. Taylor appeals the judg-
ment of the district court and challenges certain of its proce-
dural orders.
We conclude that (1) Taylor failed to establish a prima facie
case of race discrimination under Title VII; (2) a federal
employee may not bring a claim of employment discrimina-
tion under § 504 of the Rehabilitation Act; and (3) the
district court did not abuse its discretion in making the
procedural rulings under review. We therefore affirm the
judgment of the district court in all respects.
I. Background
We recount the facts before the district court in the light
most favorable to the plaintiff. Taylor, who is an African–
American, began to work at the Office of Smithsonian Institu-
tion Archives (OSIA) in January 1989 as an Administrative
Assistant (GS–7). By May 1994 she was the GS–11 supervi-
sor of the Administrative Services Division of the OSIA.
Shortly thereafter, having served approximately six months
in her GS–11 position, Taylor orally asked Edith Hedlin, who
had recently become the Director of the OSIA, to promote
her to GS–12. Hedlin declined. Taylor claims she sought the
same promotion in July and November 1995.
As the supervisor of the Administrative Services Division,
one of Taylor’s main responsibilities was balancing the budget
3
of the OSIA. When Taylor failed to balance the budget for
FY 1996, Hedlin rated her overall performance in 1996 ‘‘unac-
ceptable.’’ Hedlin nevertheless awarded Taylor a bonus of
$500 for her performance that year. Hedlin also placed
Taylor on a 90–day Performance Improvement Plan (PIP).
On May 3, Hedlin informed Taylor she had successfully
completed the PIP. Three months later Hedlin revised Tay-
lor’s 1996 performance appraisal to reflect that she had met
her responsibility for balancing the budget and had earned an
overall rating of ‘‘fully successful’’.
Because Taylor had now met or exceeded both her critical
responsibilities (budget and procurement), she should have
been rated ‘‘highly successful’’ rather than ‘‘fully successful’’
overall. Taylor so informed Hedlin, but Hedlin did not
attempt at that time to determine whether she had erred.
Taylor received the same overall rating for 1997.*
Taylor filed a complaint with the Equal Employment Op-
portunity Commission claiming she had been the victim of
discrimination based upon her race and her weight. Thereaf-
ter Hedlin, who was aware of Taylor’s EEOC complaint,
informed Taylor that Ms. Fynette Eaton would be Taylor’s
new first-line supervisor; Hedlin would assume the role of
second-line supervisor. Hedlin concedes she mentioned Tay-
lor’s EEOC complaint when meeting with Taylor to discuss
the supervisory change; Taylor concedes she had no problem
with the change. Hedlin also modified Taylor’s Performance
Plan to drop ‘‘procurement of supplies and services’’ and to
add ‘‘Human Resources Management’’ as a ‘‘critical’’ responsi-
bility. In addition, the number of elements for which her
performance would be rated was reduced to four from seven.
In July 1999 Hedlin became aware that Taylor was indeed
entitled to an overall rating of ‘‘highly successful’’ for both
1996 and 1997 and changed Taylor’s performance evaluations
accordingly. Hedlin also awarded Taylor an additional $500
* Hedlin rated Taylor ‘‘fully successful’’ in 1996, and ‘‘fully satis-
factory’’ in 1997, but the two were equivalent ratings; only the
nomenclature used on the rating form changed.
4
for her performance in 1996, thus bringing Taylor’s total
bonus for 1996 to the same $1000 Hedlin had given the other
employee whom she had rated ‘‘highly successful’’ that year.
(Hedlin did not award a bonus to any employee who had
earned a ‘‘highly successful’’ rating for 1997.)
Taylor sued the Secretary of the Smithsonian Institution in
July 1999, alleging race discrimination in the form of errone-
ously low performance evaluations for 1996 and 1997, place-
ment in the PIP, failure to promote, hostile work environ-
ment, and retaliation for filing a complaint with the EEOC,
all in violation of Title VII of the Civil Rights Act of 1964.
Taylor also alleged discrimination on the basis of her weight,
which she claimed was a violation of § 504 of the Vocational
Rehabilitation Act.
After discovery, the Smithsonian filed a motion for sum-
mary judgment in which it did not address Taylor’s claim of
retaliation. In her opposition to that motion, Taylor argued
the Smithsonian had conceded the retaliation claim should go
to trial. The Smithsonian then sought leave to file an untime-
ly second motion for summary judgment, claiming it had not
understood Taylor to have pleaded a claim of retaliation
because the complaint was poorly drafted. The district court
granted the motion, noting that — although Count III could
be construed to state such a claim — the word ‘‘retaliation’’
did not appear anywhere in Taylor’s complaint.
On cross motions, the district court dismissed Taylor’s
Rehabilitation Act claim, holding that an employee of the
Smithsonian Institution may not bring a claim of employment
discrimination pursuant to § 504 of the Act. Turning to her
Title VII claims, the district court held Taylor had not made
out a prima facie case of discrimination because she had not
alleged an adverse employment action, she was not eligible
for a promotion at the time she sought it, and she failed to
identify any similarly situated individual who sought and
received a promotion at the relevant time.
II. Analysis
We review de novo both the district court’s dismissal of
Taylor’s claim under the Rehabilitation Act and its grant of
5
summary judgment on Taylor’s claims under Title VII. Sum-
mary judgment is appropriate if ‘‘there is no genuine issue as
to any material fact and TTT the moving party is entitled to a
judgment as a matter of law.’’ Fed. R. Civ. P. 56(c). There
is a ‘‘genuine issue’’ only if ‘‘a reasonable jury could return a
verdict for the nonmoving party.’’ Anderson v. Liberty Lob-
by, Inc., 477 U.S. 242, 248 (1986). ‘‘A moving party is entitled
to a judgment as a matter of law [against] a party who fails to
make a showing sufficient to establish the existence of an
element essential to that party’s case, and on which that party
will bear the burden of proof at trial.’’ Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986).
A. The Rehabilitation Act
Taylor argues the district court erred in dismissing her
Rehabilitation Act claim upon the ground that an employee of
the federal government may not bring a claim of employment
discrimination under § 504.* Although this Court has not
definitively resolved the question whether a federal employee
may proceed under § 504, we have twice ‘‘ ‘strongly sug-
gest[ed]’ that litigants proceed under section 501.’’ Barth v.
Gelb, 2 F.3d 1180, 1183 (D.C. Cir. 1993), quoting Milbert v.
Koop, 830 F.2d 354, 357 (D.C. Cir. 1987).*
* Section 504, 29 U.S.C. § 794, provides:
No otherwise qualified individual with a disability TTT shall,
solely by reason of her or his disability, be excluded from the
participation in, be denied the benefits of, of be subjected to
discrimination under any program or activity receiving Federal
financial assistance or under any program or activity conducted
by any Executive agencyTTTT
* Section 501(b), 29 U.S.C. § 791(b), provides:
Each department, agency, and instrumentality TTT in the exec-
utive branch and the Smithsonian Institution shall TTT submit
TTT an affirmative action program plan for the hiring, place-
ment, and advancement of individuals with disabilities in such
department, agency, instrumentality, or Institution.
Section 505, 29 U.S.C. § 794a(a)(1), makes Title VII remedies
available to an employee ‘‘with respect to any complaint under
section 791 of this titleTTTT’’
6
Section 504 does not on its face apply to federal employees;
rather, it prohibits ‘‘discrimination under any program or
activity receiving federal financial assistance or under any
program or activity conducted by any Executive agencyTTTT’’
29 U.S.C. § 794. Employees of the Smithsonian Institution
are not participants in or beneficiaries of a ‘‘program or
activity conducted by any Executive agency’’; they are Gov-
ernment employees. Moreover, because the Congress ad-
dressed discrimination against Government employees, in-
cluding specifically employees of the Smithsonian Institution,
in § 501, it is highly unlikely the Congress meant to address
the subject again in § 504. See McGuinness v. U.S. Postal
Serv., 744 F.2d 1318, 1321 (7th Cir. 1984). Both in its own
terms and in the context of the statutory scheme, therefore, it
is unreasonable to interpret § 504’s prohibition of ‘‘discrimi-
nation under any program or activity conducted by any
Executive agency’’ as a prohibition of discrimination in em-
ployment by the Government.
We now hold, therefore, in conformity with the majority of
courts to have addressed the issue, that § 504 does not
provide federal employees an ‘‘alternative route for relief
under the Rehabilitation Act.’’ Rivera v. Heyman, 157 F.3d
101, 104 (2nd Cir. 1998) (so holding where, as here, plaintiff
was employee of Smithsonian Institution); see Johnson v.
U.S. Postal Serv., 861 F.2d 1475, 1478 (10th Cir. 1989) (‘‘only
section 501 provides a private cause of action for federal
employees TTT alleging employment discrimination based on
handicap’’) (emphasis in original); Boyd v. U.S. Postal Serv.,
752 F.2d 410, 413 (9th Cir. 1985) (‘‘section 501 is the exclusive
remedy for discrimination in employment by [a federal agen-
cy] on the basis of handicap’’); McGuinness, 744 F.2d at 1321.
But see Gardner v. Morris, 752 F.2d 1271, 1277 (8th Cir.
1985) (recognizing cause of action for employment discrimina-
tion against federal employer under both §§ 501 and 504);
Smith v. U.S. Postal Serv., 742 F.2d 257 (6th Cir. 1984)
(same); Prewitt v. U.S. Postal Serv., 662 F.2d 292 (5th Cir.
1981) (same).
Taylor also argues that dismissal of her claim was inappro-
priate, notwithstanding her failure to invoke the correct sec-
7
tion of the Act, because she had set forth all the elements of a
claim under § 501. Taylor’s argument is unavailing, at least
in the circumstances of this case. The Smithsonian’s motion
for summary judgment put Taylor on notice of her error.
Taylor’s only response was that she had inadvertently cited
§ 505(1) rather than § 505(a)(1) as the source of the district
court’s jurisdiction. As the Smithsonian had argued in its
motion, however, the problem is that she premised her claim
upon § 504 rather than § 501. Taylor could have sought
leave to amend her complaint but instead she staked her all
on § 504, and the district court properly concluded that she
failed to state a claim upon which relief may be granted.
Even if Taylor had pleaded her claim under § 501, we
doubt the district court would have had jurisdiction to enter-
tain it because she failed to exhaust her administrative appeal
rights. See, e.g., Downey v. Runyon, 160 F.3d 139, 145 (2d
Cir. 1998) (exhaustion required before federal court can hear
claim under § 501); Spence v. Straw, 54 F.3d 196, 200 (3d
Cir. 1995) (exhaustion required for claims under both §§ 501
and 504); Doe v. Garrett, 903 F.2d 1455, 1459–60 (11th Cir.
1990) (exhaustion required under § 501); Boyd v. United
States Postal Service, 752 F.2d 410, 412–13 (1st Cir. 1985)
(same); McGuinness, 744 F.2d at 1320 (same); Gardner v.
Morris, 752 F.2d 1271, 1279 (8th Cir. 1985) (exhaustion
required for claims under both §§ 501 and 504).
B. Title VII
Title VII provides that ‘‘[a]ll personnel actions affecting
employees TTT in the Smithsonian Institution TTT shall be
made free from any discrimination based on race, color,
religion, sex, or national origin.’’ 42 U.S.C. § 2000e–16.
Because Title VII does not proscribe discrimination based
upon an employee’s excessive weight, the district court prop-
erly considered only Taylor’s claim of race discrimination
under Title VII.
Where, as here, a plaintiff proffers only indirect evidence of
unlawful discrimination, her case is subject to the three-part
test the Supreme Court set forth in McDonnell Douglas
8
Corp. v. Green, 411 U.S. 792, 802–04 (1973). As we recently
reiterated:
Under McDonnell Douglas, it is the plaintiff’s burden to
establish a prima facie case of discrimination by a pre-
ponderance of the evidence. If the plaintiff establishes a
prima facie case, the employer must then articulate a
legitimate, nondiscriminatory reason for its actions. The
plaintiff must then demonstrate that the employer’s stat-
ed reason was pretextual and that the true reason was
discriminatory.
Stella v. Mineta, 284 F.3d 135, 144 (D.C. Cir. 2002) (citations
omitted).
In order to make out a prima facie case of racial discrimi-
nation, Taylor must demonstrate: (1) she suffered an ‘‘ad-
verse employment action’’; and (2) the adverse action oc-
curred in circumstances that give rise to an inference of racial
discrimination. See Stella v. Mineta, 284 F.3d 135, 146 (D.C.
Cir. 2003). In order to make out a prima facie case of
retaliation, Taylor must show: (1) she engaged in a statutori-
ly protected activity; (2) she suffered an adverse employment
action; and (3) there is a causal connection between the two.
See Morgan v. Fed. Home Loan Home Loan Mortgage Corp.,
328 F.3d 647, 651 (D.C. Cir. 2003).
As detailed below, Taylor failed to make out a prima facie
case for any count of her complaint. The district court
therefore properly entered summary judgment in favor of the
Smithsonian on all Taylor’s Title VII claims.
1. Count I: Low Performance Evaluations
Taylor first argues both her being made subject to a PIP
and Hedlin’s failure to complete her performance appraisals
in a timely manner were adverse employment actions and
were based upon her race. An ‘‘adverse employment action’’
within the meaning of McDonnell Douglas is ‘‘a significant
change in employment status, such as hiring, firing, failing to
promote, reassignment with significantly different responsi-
bilities, or a decision causing significant change in benefits.’’
Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998). As
9
we have noted before, ‘‘formal criticism or poor performance
evaluations are [not] necessarily adverse actions’’ and they
should not be considered such if they did not ‘‘affect[ ] the
[employee’s] grade or salary.’’ Brown v. Brody, 199 F.3d
446, 457–58 (D.C. Cir. 1999).
Taylor did not present any evidence to the effect that
either her being put on the PIP or the delay in receiving her
1996 and 1997 performance evaluations affected her grade or
salary. Indeed, Taylor did not present evidence suggesting
she suffered any ‘‘significant change in [her] employment
status.’’ Taylor alleges only that Hedlin improperly ‘‘placed
[her] on a ninety day [PIP]’’; Hedlin ‘‘refused to terminate
the plan, even though [Hedlin] had orally informed [her] that
[she] had successfully completed the plan’’; Hedlin did not
execute a 1996 performance evaluation for Taylor until Sep-
tember 1997; and, due to the delay in removing Taylor from
the PIP, Taylor ‘‘did not receive performance standards’’ and
an evaluation for 1997 until May 1998. Taylor does not
dispute, however, that Hedlin removed her from the PIP just
two weeks after the plan was scheduled to end. In fact,
Taylor’s affidavit indicates that Hedlin informed Taylor she
had successfully completed the PIP ‘‘on May 3, 1997,’’ the
date on which the plan was scheduled to end. Even assuming
there was a brief delay in removing Taylor from the PIP, she
does not explain why we should consider that an adverse
employment action. Nor did she claim any adverse effect
caused by the delay in receiving her performance evaluations.
We therefore conclude that neither Taylor’s placement in the
PIP nor the delay of her performance evaluations was an
adverse employment action upon which Taylor may base a
claim of discrimination.
Taylor next argues the district court erred in holding her
erroneous performance rating — with its concomitant effect
upon her bonus — was not an adverse employment action
because Hedlin corrected the evaluation and paid the proper
bonus before Taylor brought this suit. To be sure, loss of
bonus money because of an improperly low performance
rating may constitute an adverse employment action for the
purposes of Title VII. See Russell v. Principi, 257 F.3d 815,
10
819 (D.C. Cir. 2001) (contrasting performance evaluations
with bonuses). The issue whether an employer can cure a
violation of Title VII and thereby avoid liability for the
violation, however, is one of first impression in this circuit.
We agree with the four other circuits to have addressed the
question: An employer may cure an adverse employment
action — at least one of the sort here alleged — before that
action is the subject of litigation. See White v. Burlington
Northern & Santa Fe Railway Co., 310 F.3d 443, 452 (6th
Cir. 2002) (reinstatement that ‘‘puts the plaintiff in the same
position she would have been in absent the suspension consti-
tutes the ‘ultimate employment decision,’ thereby negating a
potentially adverse intermediate employment decision’’), reh’g
en banc granted and judgment vacated, 321 F.3d 1203 (2003);
Pennington v. City of Huntsville, 261 F.3d 1262, 1267–68
(11th Cir. 2001) (no adverse employment action where plain-
tiff initially denied but shortly thereafter received promotion);
Brooks v. San Mateo, 229 F.3d 917, 929–30 (9th Cir. 2000)
(retaliatory lowering of performance evaluation not adverse
employment action where evaluation was ‘‘on appeal’’ and
might have been corrected if plaintiff had not quit her job
while appeal was pending); Benningfield v. City of Houston,
157 F.3d 369, 378 (5th Cir. 1998) (‘‘We need not address
whether a mere delay in promotion constitutes an adverse
employment action because [plaintiff] received the promotion
with retroactive pay and seniority’’); cf. Page v. Bolger, 645
F.2d 227, 233 (4th Cir. 1981) (en banc) (‘‘there are many
interlocutory or mediate decisions having no immediate effect
upon employment conditions which were not intended to fall
within the direct proscriptions of TTT Title VII’’).
As the district court reasoned:
Permitting employers the opportunity to correct work-
place wrongs prior to litigation is the objective of the
EEO process. If a plaintiff were permitted a right to
sue even if his or her employer had corrected the griev-
ance, there would be absolutely no incentive for employ-
ers to make adjustments for past conduct during the
EEO process.
11
Mem. Op. at JA 60, citing Martini v. Federal Nat’l Mortgage
Ass’n, 178 F.3d 1336, 1338 (D.C. Cir. 1999) (remanding to
district court with instructions to dismiss plaintiff’s suit as
untimely because ‘‘Title VII requires complainants to wait 180
days before suing in federal court so that the Commission
may informally resolve as many charges as possible’’). Be-
cause Hedlin corrected her error in rating Taylor and in-
creased Taylor’s bonus accordingly before Taylor filed suit,
there was no unremedied adverse employment action when
the suit was filed and the district court properly granted
summary judgment in favor of the Smithsonian on Count I.
2. Count II: Failure to Promote
In Count II of her complaint Taylor claimed she was denied
a promotion because of her race. Taylor does not claim she
sought promotion into a vacant position. Rather, she claims,
with her current responsibilities, she should have received an
increase in grade and salary. Because ‘‘the traditional
McDonnell Douglas test does not fit’’ such a case, we ‘‘adjust
the McDonnell formula to ask whether a similarly situated
person TTT requested and received the benefit she sought.’’
Cones v. Shalala, 199 F.3d 512, 517 (D.C. Cir. 2000). In
order to make out a prima facie case of discriminatory refusal
to promote, therefore, the plaintiff must show that she sought
and was denied a promotion for which she was qualified, and
that ‘‘other employees of similar qualifications TTT were in-
deed promoted at the time the plaintiff’s request for pro-
motion was denied.’’ Bundy v. Jackson, 641 F.2d 934, 951
(D.C. Cir. 1981).
At the time Taylor requested a promotion to GS–12, she
had spent less than eight months as a GS–11 employee.
Under the applicable personnel regulation, an employee must
have spent at least one year in grade GS–11 before she may
be considered for promotion to a GS–12 or higher position.
See 5 C.F.R. § 300.604(a). The district court therefore prop-
erly found Taylor was not eligible for promotion at the time
she sought it.
Taylor argues the district court erred in failing to consider
requests for promotion she claims to have made in July and
12
November 1995. Although a district court should consider on
a motion for summary judgment whether ‘‘postpleading mate-
rial’’ suggests there are triable issues of material fact, WRIGHT
ET AL., FEDERAL PRACTICE & PROCEDURE: CIVIL 3D § 2721, at
366, the motion cannot ‘‘be defeated by factual assertions in a
brief by the party opposing it,’’ id. § 2723, at 389–90. Be-
cause mention of these purported requests and denials appear
only in Taylor’s memorandum in opposition to the Smithsoni-
an’s motion for summary judgment, and not in her complaint
or other verified pleading, the district court properly conclud-
ed it was not obliged to deal with them at all. See Fed. R.
Civ. P. 56(c) (summary judgment ‘‘shall be rendered forthwith
if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with affidavits, if any, show that
there is no genuine issueTTTT’’).
In any event, Taylor’s present claim to have sought pro-
motion in July and November 1995 finds scant support in the
record. As support for the alleged request of July 1995,
Taylor cites a memorandum dated July 7 from herself and
Hedlin to two other employees of the OSIA. The subject of
the memorandum is ‘‘Agenda,’’ and the relevant portion
reads:
Promotion for Carolyn [Taylor] beyond the GS–11 will be
dependent upon her budget responsibilities. Julie indi-
cated that OSIA may not have a large enough budget to
warrant further grade increases for Carolyn, but they
would do comparisons and give her the info.
The memorandum does not indicate that Taylor requested
promotion in July 1995. It contains a statement, albeit an
ambiguous one, about the possibility of a promotion, but it
does not indicate she requested a promotion. The alleged
November 1995 request is nowhere even mentioned in the
record. Indeed, as the Smithsonian points out, the only
document Taylor cites as support for her claim that she
sought promotion in November is dated September 1995.
Finally, and most important, Taylor’s claim to have sought
13
promotion in July and November 1995 is contradicted by her
own earlier deposition, in which she testified only that she
requested promotion within a month or two after Hedlin
became Director of the SIA. Clearly, therefore, Taylor failed
to provide sufficient evidence she sought promotion in July or
November to withstand a motion for summary judgment.
See Ben–Kotel v. Howard Univ., 319 F.3d 532, 536 (D.C. Cir.
2003) (‘‘A party opposing a motion for summary judgment
must point to more than just ‘a scintilla of evidence’ support-
ing [her] position; ‘there must be evidence on which the jury
could reasonably find for the plaintiff’ ’’) (quoting Anderson,
477 U.S. at 252).
Not only did Taylor fail to raise a genuine issue with
regard to her eligibility for promotion, she also failed to point
to any circumstance giving rise to the inference she was
denied the promotion because of her race. Taylor’s claim
rests solely upon Hedlin’s having promoted four ‘‘Caucasian’’
employees from GS–11 to GS–12. The undisputed facts show,
however, that those individuals were not situated similarly to
Taylor. Three were archivists who had spent over ten years
in grade GS–11 before Hedlin promoted them; the other was
a supervisory archivist ‘‘in a career ladder position GS–
11/GS–12.’’ Because Taylor falls far short of showing that
Hedlin promoted ‘‘other employees of similar qualifications,’’
Bundy, 641 F.2d at 951, the district court properly held her
claim fails as a matter of law, irrespective of her eleventh-
hour allegation that she sought promotion after she had spent
sufficient time in grade.
3. Count III: Retaliation
Taylor claims Hedlin changed her first-line supervisor and
modified her Performance Plan in retaliation for her having
filed a complaint with the EEOC. Relying upon the lack of
evidence of any ‘‘substantive change’’ or of an increase in
Taylor’s workload as a result of these arrangements, the
district court concluded that neither constituted an adverse
employment action.
Taylor argues the district court erred in failing to consider
evidence demonstrating that the changes of which she com-
14
plains were retaliatory. Whether they were retaliatory is
immaterial, however, if they were not adverse employment
actions. Taylor does not point to a scintilla of evidence
suggesting these changes had a material adverse effect upon
the terms or conditions of her employment. See Freedman v.
MCI Telecomm. Corp., 255 F.3d 840, 844 (D.C. Cir. 2001).
Because Taylor did not present any evidence upon which one
could reasonably find she suffered an adverse employment
action, the district court properly granted summary judgment
in favor of her employer on Count III.
III. Conclusion
Taylor also raises various procedural objections, none of
which merits treatment in a published opinion. For the
foregoing reasons the judgment of the district court is
Affirmed.