Talavera v. Shah

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 19, 2010 Decided March 29, 2011

No. 09-5373

CARMEN S. TALAVERA,
APPELLANT

v.

RAJIV SHAH, ADMINISTRATOR, U.S. AGENCY FOR
INTERNATIONAL DEVELOPMENT,
APPELLEE

Appeal from the United States District Court
for the District of Columbia
(No. 1:07-cv-00720)

Jonathan L. Gould argued the cause and filed the briefs for
appellant.

Alan R. Kabat was on the brief for amicus curiae
Metropolitan Washington Employment Lawyers Association in
support of appellant.

Marina Utgoff Braswell, Assistant U.S. Attorney, argued
the cause for appellee. With her on the brief were Ronald C.
Machen Jr., U.S. Attorney, and R. Craig Lawrence, Assistant
U.S. Attorney. Jane M. Lyons, Assistant U.S. Attorney, entered
an appearance.
 2

Before: ROGERS and BROWN, Circuit Judges, and
SILBERMAN, Senior Circuit Judge.

Opinion for the Court by Circuit Judge ROGERS.

Concurring opinion by Senior Judge SILBERMAN.

ROGERS, Circuit Judge: Carmen Talavera, a former
employee of the United States Agency for International
Development (“USAID”), appeals the grant of summary
judgment on her claims of gender discrimination and retaliation
under Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e et seq. Talavera contends that while employed by the
Office of Security she was referred for an unwarranted mental
health screening in retaliation for protected activity, and that she
was passed over for promotion to a GS 14 position in June 2004
and again in November 2004, and ultimately she was removed
from her position in September 2005, as a result of unlawful
gender discrimination and retaliation. We affirm the grant of
summary judgment except with regard to the June 2004 non-
promotion claim. As to that claim we hold that Talavera offered
sufficient evidence to raise a material issue of disputed fact
whether the USAID’s explanation for her non-promotion was
pretextual and from which a reasonable jury could find unlawful
gender discrimination. Accordingly, we affirm in part and we
reverse and remand Talavera’s June 2004 non-promotion gender
discrimination claim.

I.

Talavera, a Hispanic woman, had worked for the federal
government for twenty-two years1 before working in the USAID

1
Talavera worked at the General Services Administration
(“GSA”) from 1985 to 2001. From 1994 to 2001 she was a Physical
 3

Office of Security from September 2001 until she was removed
from her position four years later. The director of the Office of
Security until August 2004 was Michael Flannery. Talavera was
initially assigned as a GS 13 Security Specialist to the
Personnel, Information and Domestic Security Division
(“Information Security” division), which was headed by Randy
Streufert. In July 2003, she was transferred to a GS 13 Regional
Operations Officer position in the Physical Security Program
Overseas Division (“Physical Security” division), which was
headed by David Blackshaw; her immediate supervisor was
Gaylord Coston.

Talavera had complained in early 2003 to her team leader
and Flannery about being sexually harassed by a contractor.
When the contractor was nevertheless hired and Talavera
complained to Flannery, Flannery transferred her to the Physical
Security Division. During a training trip with Coston in 2003,
Talavera challenged Coston’s personnel decisions as favoring
men. An Equal Employment Opportunity Office (“EEO office”)
report in December 2004 showed that there were no women in
GS 14 or higher positions in the Office of Security; March 2005
statistics showed no change.

Security Specialist focusing on crime prevention and disaster
preparedness; from 1985-1994 she was an Equipment Specialist
working extensively with outside contractors and vendors. While at
GSA, Talavera received training in physical security, including from
the Federal Law Enforcement Training Center, the American Society
for Industrial Security, the Occupational Safety and Health
Administration, and the Academy of Physical Security. She was
named GSA Employee of the Year in 1998. While working in the
USAID Office of Security, Talavera received excellent performance
evaluations and cash awards in the Personnel, Information and
Domestic Security Division, and was approved for a cash award based
on her outstanding performance in the Physical Security Program
Overseas Division, On the Spot Cash Award (May 27, 2004).
 4

The district court opinion relates the factual underpinnings
of Talavera’s claims with regard to her referral for a psychiatric
screening (that never took place) attendant to her medical
examination for clearance to serve a tour of duty in Iraq, her
non-promotion to a GS 14 position in November 2004, and the
eventual termination of her employment in September 2005.
See Talavera v. Fore, 648 F. Supp. 2d 118 (D.D.C. 2009). We
need not repeat them here because upon de novo review, see
Miller v. Hersman, 594 F.3d 8, 10 (D.C. Cir. 2010), we cannot
conclude that summary judgment was inappropriately granted
on these claims. We therefore focus on what happened in
connection with Talavera’s non-promotion to a GS 14 position
in June 2004. From our review of the entire record we are
confident that doing so does not prejudice either party’s
contentions on appeal.

In May 2004, Talavera applied for a GS 14 Security
Specialist position in the Information Security division where
she had worked for 22 months and where she had earned two
cash bonuses approved by Streufert. She was placed on the best
qualified list, based on the applicants’ self assessments; an
asterisk indicated only she submitted complete documentation
to support her application. Streufert, the selecting official,
interviewed all of the candidates in early June 2004, including
Talavera. In that same time period Talavera told Coston and
Blackshaw that she was filing an EEO complaint regarding the
mental health screening referral. Streufert shortly thereafter
selected Regional Operations Officer Anthony Mira based on his
answers to the questions Streufert had asked during the
interview. Although Office of Personnel Management (“OPM”)
regulations required promotion materials to be preserved for two
years, see 5 C.F.R. § 335.103(b)(5) (2002), and EEOC
Regulations required preservation for one year, see 29 C.F.R. §
1602.14 (1991), Streufert destroyed his interview notes in
August or September 2004. He also did not enter the questions
 5

he asked or the rankings and justification for his selection of
Mira into the Human Resources computer system; the USAID
regulations did not require him to do so.

Upon exhausting her administrative remedies, Talavera
filed a complaint on April 23, 2007, and an amended complaint
on January 4, 2008, alleging that the USAID had unlawfully
discriminated and retaliated against her in violation of Title VII.
The district court granted the USAID’s motion for summary
judgment, and Talavera appeals.

II.

On appeal, Talavera contends that the district court erred by
failing to evaluate her evidence in its totality and failing to
assume the truth of the facts and draw inferences in her favor.
Specifically, as relevant to her July 2004 non-promotion, she
maintains that the district court ignored all of her evidence of
male favoritism in past promotions, bonus awards, and job
assignments; discounted comments that showed gender bias and
retaliatory animus in the GS 14 selecting official; allowed the
USAID to rely on interview results despite the selecting
official’s improper destruction of his interview notes and
excluded evidence that she was asked different questions during
her interview than the men who applied; and discounted
evidence of under-representation of women in upper
management.

Summary judgment is appropriate “if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” FED. R. CIV.
P. 56(a). A material fact is one that “might affect the outcome
of the suit under the governing law.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). The evidence is to be viewed in
the light most favorable to the nonmoving party and the court
 6

must draw all reasonable inferences in favor of the nonmoving
party. Id. at 255; Holcomb v. Powell, 433 F.3d 889, 895 (D.C.
Cir. 2006). Although summary judgment is not the occasion for
the court to weigh credibility or evidence, see Anderson, 477
U.S. at 255; Holcomb, 433 F.3d at 895, summary judgment is
appropriate “if the nonmoving party ‘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.’” Holcomb, 433 F.3d at 895 (quoting Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986)). “[T]here is no issue
for trial unless there is sufficient evidence favoring the
nonmoving party for a [reasonable] jury to return a verdict for
that party.” Anderson, 477 U.S. at 249. “The mere existence of
a scintilla of evidence in support of the plaintiff’s position will
be insufficient; there must be evidence on which the jury could
reasonably find for the plaintiff.” Id. at 252. 2

The foundation for analyzing Title VII claims was laid in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and
embracing subsequent Supreme Court decisions, this court has
applied the standard, see Aka v. Washington Hospital Center,
156 F.3d 1284 (D.C. Cir. 1998) (en banc). More recently, the
court has clarified that once the employer has asserted a
legitimate non-discriminatory reason for its decision, the district
court should proceed to address “one central question: 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 . . .
[gender]?” Brady v. Office of the Sergeant at Arms, 520 F.3d
490, 494 (D.C. Cir. 2008); see Jones v. Bernanke, 557 F.3d 670,
678 (D.C. Cir. 2009). Accordingly, we look to “(1) the plaintiff's

2
Cf. Harbor Ins. Co. v. Schnable Foundation Co., Inc., 946
F.2d 930, 935 (D.C. Cir. 1991).
 7

prima facie case; (2) any evidence the plaintiff presents to attack
the employer's proffered explanation for its actions; and (3) any
further evidence of discrimination that may be available to the
plaintiff . . . or any contrary evidence that may be available to
the employer.” Aka, 156 F.3d at 1289; see St. Mary’s Honor Ctr.
v. Hicks, 509 U.S. 502, 510–11 (1993).

The USAID claimed that Streufert’s selection in June 2004
of Anthony Mira over Talavera for the GS 14 promotion was
based on his superior performance during his interview by
Streufert. In support of her claim that she was passed over for
this promotion because of gender discrimination and retaliation,
Talavera offered evidence that included:

1. Statements by the Director of the Office of Security.
In her formal EEO complaint, Talavera recounted several
statements by Flannery, the Director of the Office of Security
until August 2004, who was Streufert’s boss, to demonstrate that
Streufert was biased against women. Flannery had told her, for
example, that Streufert was not “culturally sensitive,” had
“many issues” with women, and “couldn’t deal being an equal
colleague to a woman.” Memorandum for EEO Record from
Carmen S. Talavera (Mar. 25, 2005). Talavera contends that the
district court erred in discounting the probative value of these
statements by importing a requirement the comment be directly
connected to an adverse action or occur in the context of the
promotion decision.3 See Talavera, 648 F. Supp. 2d at 131–32.

3
Talavera cites United States v. Castleberry, 116 F.3d 1384,
1390–91 (11th Cir. 1997) (holding statements admissible because
reasonably close to the dates of an alleged conspiracy, construing FED.
R. EVID. 801(d)(2)(E)), and Danzer v. Norden Systems, Inc., 151 F.3d
50, 55–56 (2d Cir. 1998) (holding, despite the lag time of statements
made over a year prior to the employee’s discharge, statements
admissible as part of a sequence of events culminating in the
 8

On appeal the USAID maintains that the statements were
inadmissible hearsay and not a party admission under Federal
Rule of Evidence 801(d)(2)(D), relying on the district court’s
analysis.

Rule 801 of the Federal Rules of Evidence provides that a
statement is not inadmissible hearsay when it is an admission by
a party opponent. FED. R. EVID. 801(d)(2). Although this
circuit has not spoken to the precise evidentiary issue, see
generally U.S. v. Paxson, 861 F.2d 730, 734–35 (D.C. Cir.
1988), opinions from other circuits on the requirements of Rule
801(d)(2)(D) are instructive.

In the employment discrimination context, the circuit courts
of appeal have held that Rule 801(d)(2)(D) requires only that the
declarant have some authority to speak on matters of hiring or
promotion or that the declarant be involved in the decision-
making process in general. This, along with evidence that the
statements were made during the existence of the employment
relationship and relate to the challenged action, is sufficient to
allow the statements into evidence as party admissions. See
generally 30B M. GRAHAM, FEDERAL PRACTICE AND
PROCEDURE: EVIDENCE § 7023 (Interim Ed. 2006). For instance,
in Marra v. Philadelphia Housing Authority, 497 F.3d 286 (3d
Cir. 2007), the Third Circuit held admissible statements
allegedly made by the employee’s direct supervisor that there
would be repercussions by the employer against anyone who
testified against the employer in a previous discrimination suit.
The court held that “[p]ersonal involvement in the employment
decision being litigated” is not “an absolute prerequisite” to
admissibility of a statement under Rule 801(d)(2)(D). Id. at 297.
The Seventh Circuit has reached the same conclusion. In
Stephens v. Erickson, 569 F.3d 779 (7th Cir. 2009), the court held

discharge). Neither is directly on point.
 9

that “[f]or an agent’s statement regarding an employment action
to constitute an admission, she need not have been personally
involved in that action, but her duties must encompass some
responsibility related to the decisionmaking process affecting
the employment action.” Id. at 793 (internal quotations omitted).
The court had earlier held in an age discrimination case in
Hybert v. Hearst Corp., 900 F.2d 1050 (1990), that a statement
by the employee’s immediate supervisor informing him that
other management officials had said the company wanted to get
rid of older workers was admissible under Rule 801(d)(2)(D)
because “[the statements] were direct warnings by [the
supervisor], himself a member of management, given to . . . his
subordinate, as to the attitude, intentions and/or policy of the
higher-ups in management.” Id. at 1053.

As Director of the Office of Security, it is undisputed that
Flannery was empowered to speak on the subject of promotions
within the Office and was involved generally in the promotion
process. His statements to Talavera, made during his tenure as
Director, were “direct warnings” about the “attitude” of a
management official he supervised. See Hybert, 900 F.2d at
1053. Regardless of whether or not Talavera has shown that
Flannery was personally involved in the June 2004 promotion,
and regardless of exactly when the statements were made, they
are directly relevant to the question of whether impermissible
gender discrimination may have played a part in Streufert’s
promotion decision. Talavera was not obligated to prove more
because Rule 801(d)(2)(D) does not require for admissibility
that the exact time and precise context in which a statement was
made be established. Further, on summary judgment Talavera,
as the non-moving party, is entitled to the benefit of all
reasonable inferences from the evidence, see Anderson, 477 U.S.
at 255, and a reasonable inference is that Flannery was speaking
about Streufert’s biased attitudes towards women and this bias
 10

had implications for the promotion decision that Streufert made
in June 2004.

In ruling that Talavera had failed to establish the context of
Flannery’s statements and hence they were not probative of
Streufert’s discriminatory intent, 648 F. Supp. 2d at 132, the
district court relied on Figures v. Board of Public Utilities, 967
F.2d 357, 360–61 (10th Cir. 1992), which upheld pursuant to
Federal Rule of Evidence 403, exclusion of “anecdotal evidence
of discrimination,” namely “racial comments” made by the
defendants, as “not probative of any issue in the case unless [the
plaintiff] could link those comments to personnel actions of
hiring, firing and promoting.” In contrast, the statements
Talavera seeks to introduce are not stray comments by an
employer; they are statements by the head of the Office of
Security relating specifically to alleged gender bias on the part
of the subordinate manager who was responsible for making the
employment decision that Talavera challenges. As a result, the
statements themselves are intrinsically linked to the disputed
personnel action, and Figures is inapposite. The district court
erred in concluding the statements were not probative of
Streufert’s discriminatory intent.

By contrast, the district court properly ruled that the
statements by Michael Lessard were inadmissible hearsay. See
Talavera, 648 F. Supp. 2d at 131; cf. Carter v. George
Washington Univ., 387 F.3d 872, 880 (D.C. Cir. 2004).
Talavera recounted in an affidavit that her colleague Michael
Lessard had told her that he and Roger Rowe were asked
different questions than Talavera during their interviews with
Streufert. Talavera offered no evidence that these statements
were within the scope of Lessard’s employment or that he was
given authority to speak on behalf of the USAID on the subject
of employment decisions and thus admissible under Rule
801(d)(2)(D). See, e.g., Stephens, 569 F.3d at 793–94; Jacklyn
 11

v. Schering-Plough Healthcare Products Sales Corp., 176 F.3d
921, 928 (6th Cir. 1999).

2. Streufert’s Statement. At least a year before the
June 2004 promotion decision, according to Talavera’s March
25, 2005 EEO memorandum, even though she also had served
in the military, Streufert had told her that the men in the office
had bonded because they served in the military. The district
court discounted this statement as a “stray remark” and as
unconnected to the promotion decision at issue, Talavera, 648
F. Supp. 2d at 132, but ruled that Talavera was entitled to have
this evidence considered as part of her overall claim that the
USAID discriminated against her, id. at 134. At the summary
judgment stage of proceedings the court is not to weigh the
evidence, see Holcomb, 433 F.3d at 895, and Streufert’s
statement is relevant to Talavera’s claim of gender
discrimination, illustrative of Flannery’s statements about
Streufert’s animus toward women, and properly considered in
evaluating whether the totality of evidence shows the USAID’s
explanation was pretextual.

3. Streufert’s Destruction of Interview Notes.
Approximately two months after conducting the interviews and
making his selection decision, Streufert destroyed all of his
interview notes. Streufert admitted that he had destroyed his
notes in August or September, 2004, stating that he “typically
destroy[ed] this type of material unless there [was] a reason to
keep it,” and he had “no information that any of the candidates
had officially questioned the selection.” Streufert Aff. 3, July
27, 2005. Streufert also did not enter any notes relating to his
promotion decision into the Human Resources computer system
although it provides space for comments on each applicant and
although other managers made such entries. This was despite
Streufert’s sworn statement that, having supervised all of the
applicants, the interview process would give him the
 12

information he needed to make a selection for the GS 14
promotion. The district court ruled that in the absence of
evidence of bad faith, Talavera was entitled to only a “weak
adverse inference” relating to the destruction of the notes
because the destruction was “at worst negligent” and not
intentional. Talavera, 648 F. Supp. 2d at 133.

This court has recognized the negative evidentiary inference
arising from spoliation of records. See Webb v. D.C., 146 F.3d
964 (D.C. Cir. 1998); Shepherd v. Am. Broad. Co., 62 F.3d 1469
(D.C. Cir. 1995). Observing that entry of a default judgment as
a sanction for destruction of records is a “drastic” sanction [that]
is merited only when “less onerous methods . . . will be
ineffective or obviously futile,” Webb, 146 F.3d at 971; see also
Shepherd, 62 F.3d at 1478, the court explained that the
evidentiary presumption that the destroyed documents contained
favorable evidence for the party prejudiced by their destruction
was a lesser, more common sanction. Webb, 146 F.3d at 974 &
n.20. Indeed, in Webb the court stated that the lack of
compliance — the defendant’s “general practice of discarding
files after a set period of time” and “failing to notify employees
systemwide of the federal regulations that imposed a duty to
retain such materials” — was “certainly serious and must be
addressed.” 146 F.3d at 975–76. Other circuits have similarly
held that violation of a regulation requiring document
preservation can support an inference of spoliation. See, e.g.,
Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 108–09
(2d Cir. 2001); Favors v. Fisher, 13 F.3d 1235, 1239 (8th Cir.
1994); Hicks v. Gates Rubber Co., 833 F.2d 1406, 1419 (10th
Cir. 1987). Notably, in Byrnie, 243 F.3d at 109, the employer,
like Streufert, had a practice of destroying records after the
hiring process concluded. The Second Circuit held that where
there was a written policy requiring document preservation and
documents had been destroyed in violation of that policy, the
obligation to preserve records attaches as long as the party
 13

seeking the inference is “a member of the general class of
persons that the regulatory agency sought to protect in
promulgating the rule.” Id. Further, that “where, as here, a party
has violated an EEOC record-retention regulation, a violation of
that regulation can amount to a breach of duty necessary to
justify a spoliation inference in an employment discrimination
action.” Id.

The USAID acknowledges that Streufert was required under
OPM regulations to keep his notes for two years, 5 C.F.R. §
335.103(b)(5) (2002). Further, regulations of the EEOC
required him to keep his notes for one year, 29 C.F.R. §
1602.14. These regulations do not contain an exception
encompassing Streufert’s “typical” practice. Streufert admits to
knowing or negligent destruction of his interview notes insofar
as the destruction was not accidental. See id. Talavera is a
member of the classes sought to be protected, for the EEOC
regulation pertains to employees who file Title VII complaints
and the OPM regulation pertains to grievances of promotion
decisions. The destroyed records were relevant to Talavera’s
challenge because the USAID defended on the ground that her
non-selection was based on her poor performance during
Streufert’s interview of her, and the notes might have
undermined his claim that the man he selected exhibited more
knowledge of the job than she did and might also have
confirmed Talavera’s assertion that Streufert asked her different
questions than he asked of the men he interviewed. See Byrnie,
243 F.3d at 109–10. The notes represented Talavera’s best
chance to present direct evidence that Streufert’s proffered
reason for the selection was pretextual.

A reasonable jury could conclude that Streufert’s non-
accidental destruction of his notes supports an inference that the
notes would have contained information favorable to her claim.
For example, Streufert admitted that he could not recall whether
 14

Talavera had mentioned relevant portions of her prior federal
government experience. He also admitted that when in the past
he had been involved with an EEO complaint about his selection
of a man rather than a woman, he was asked to submit his
justification and had done so in writing. Also, a reasonable jury
could find that the statement in Streufert’s deposition that he
knew that agencies are required to keep records, but he thought
it was Human Resources’ responsibility to do so, was to some
extent contradictory with the statement in his prior affidavit that
he was not aware of any policy concerning note retention by
selecting officials. Given his failure to enter notes on his
promotion decision into the Human Resources computer system,
it is unclear how he imagined that Human Resources would be
able to keep records on the promotion decision when he had
provided them no notes on his selection decision.

The district court thus erred in finding that Talavera was
entitled to only a “weak adverse inference” of spoliation, and
that “[t]he destruction of evidence, standing alone, is [not]
enough to allow a party who has produced no evidence – or
utterly inadequate evidence – in support of a given claim to
survive summary judgment on that claim.” Talavera, 648 F.
Supp. 2d at 133-34 (alteration in original; citations omitted).
The spoliation inference must be considered along with
Talavera’s other admissible evidence regarding unlawful gender
discrimination.

Given the USAID’s proffer of a legitimate, non-
discriminatory reason for Streufert’s selecting Mira — that,
according to Streufert, Mira performed better during his
interview than Talavera and was the only candidate who had
learned the technical information Streufert was assessing — the
question is whether Talavera offered sufficient admissible
evidence, when considered in its totality and according her all
reasonable favorable interferences from the evidence, from
 15

which a reasonable jury could find that the USAID’s reason was
pretextual. See Aka, 156 F.3d at 1290; see also Brady, 520 F.3d
at 494. The district court did not consider either Flannery’s or
Streufert’s statements, both of which it excluded as irrelevant.
It drew only a “weak” inference from Streufert’s destruction of
his interview notes. Viewing this evidence most favorably to
Talavera, a reasonable jury could find that the USAID’s reason
was pretextual. When the Director’s statements regarding
Streufert’s discriminatory attitude toward women, as illustrated
by Streufert’s own statement indicating a preference for male
colleagues in the workplace, is combined with Streufert’s
improper destruction of his interview notes on which he claimed
to have based his promotion selection, a reasonable jury could
find that his discriminatory attitude affected his decision to pass
over her for promotion and that the USAID’s stated reason for
Talavera’s non-promotion was a pretext for unlawful gender
discrimination. Because Talavera produced sufficient evidence
for a reasonable jury to find pretext, see Aka, 156 F.3d at 1290,
summary judgment on this claim was inappropriate.

By contrast, Talavera failed to present evidence from which
a reasonable jury could find that her June 2004 non-promotion
was the result of unlawful retaliation by Streufert for her June 8,
2004 EEO complaint regarding the unwarranted referral for a
mental health screening. To prove unlawful retaliation Talavera
had to show that Streufert, who made the promotion selection,
had knowledge of her protected activity. See Jones, 557 F.3d at
679. Although she “need only offer circumstantial evidence that
could reasonably support an inference” that Streufert knew of
her EEO activity, id. at 679, and context matters, Burlington
Northern, 548 U.S. at 69, Talavera offered only evidence from
which a reasonable jury would have had to speculate that he
knew and that is insufficient to defeat summary judgment.
 16

Talavera asserts that Streufert worked closely with Coston
and Blackshaw, discussing personnel matters in the Office of
Security on a regular basis and they hung out together. She had
told Coston and Blackshaw that she was going to file an EEO
complaint about their referral of her for a mental health
screening. She therefore concludes that Streufert must also have
known given the close temporal proximity between the protected
activity on June 8, 2004, when she filed her EEO complaint, and
his promotion decision on June 16, 2004. Although an adverse
action that occurs shortly after protected activity can be part of
a finding of retaliation, see Clark County School District v.
Breeden, 532 U.S. 268, 273–74 (2001), “positive evidence
beyond mere proximity is required to defeat the presumption
that the proffered explanations are genuine,” Woodruff v. Peters,
482 F.3d 521, 530 (D.C. Cir. 2007). Talavera offered no
evidence, for instance, of a managers’ meeting between June 8
and 16, much less that Coston or Blackshaw revealed the
referral for a mental health screening to anyone other than the
examining physician. Given Streufert’s denial under oath that
he knew of the June 8 EEO complaint, the fact that Streufert had
been her previous supervisor still requires a speculative leap that
her then-current supervisors would have discussed the complaint
with him.

Talavera’s reliance on her discussions with Streufert of
previous complaints is misplaced because too much time had
passed to link the past activity to the challenged action.
Talavera, 648 F. Supp. 2d at 129 n.6. See Taylor v. Solis, 571
F.3d 1313, 1322 (D.C. Cir. 2009); Woodruff, 482 F.3d at 530.
In Cones v. Shalala, 199 F.3d 512 (D.C. Cir. 2000), on which
Talavera relies, at the time of the allegedly retaliatory action, the
employee’s EEO complaints were being investigated and the
employee was continuing to file formal discrimination and
retaliation complaints. Id. at 521. So too in Holcomb, 433 F.3d
at 903. Talavera’s complaints of sexual harassment by a
 17

consultant and denial of a computer monitor occurred long
before her non-promotion and were either never presented to the
EEO office at all or not part of a formal EEO complaint.

Accordingly, we affirm the grant of summary judgment
except with regard to Talavera’s June 2004 non-promotion
gender discrimination claim, which we remand to the district
court.
SILBERMAN , Senior Circuit Judge, concurring: I join the court’s
opinion fully but wish to state that I think this is a close case.
We affirmed virtually all of the district court’s determinations
– including its conclusion that Talavera’s discharge was not
discriminatory. Talavera, who was a marginal employee – as
reflected in her misrepresentations described in the district court
opinion, see Talavera v. Fore, 648 F. Supp. 2d 118, 137-40
(D.D.C. 2009) – barely produces sufficient evidence to escape
summary judgment on one of her prior to discharge non-
promotion claims. This case illustrates why district judges
typically decline Title VII cases when they take senior status.