                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 20a0318n.06

                                      Case No. 19-3433

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT
                                                                                  FILED
                                                                             Jun 03, 2020
DORIS L. STEWART,                                  )                     DEBORAH S. HUNT, Clerk
                                                   )
       Plaintiff-Appellant,                        )
                                                   )     ON APPEAL FROM THE UNITED
v.                                                 )     STATES DISTRICT COURT FOR
                                                   )     THE SOUTHERN DISTRICT OF
MARK T. ESPER, Secretary of Defense,               )     OHIO
United States Department of Defense,*              )
                                                   )
       Defendant-Appellee.                         )




BEFORE: SILER, GIBBONS, and READLER, Circuit Judges.

       SILER, Circuit Judge. Doris Stewart appeals from the district court’s grant of summary

judgment to the Secretary of Defense on her Title VII claims of discrimination, a hostile work

environment, and retaliation. For the following reasons, we AFFIRM.

                                              I.

       Stewart, an African-American woman, is employed by the Defense Finance and

Accounting Service (“DFAS”)—part of the Department of Defense—in Columbus, Ohio as an




       *
        Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Secretary of Defense Mark T.
Esper has been substituted for the former Secretary of Defense as the defendant in this case.
Case No. 19-3433, Stewart v. Esper


Information Technology Specialist.1 Stewart alleges that since 2013 she has been subject to

disparate treatment discrimination—based on her race, color, and sex—and a hostile work

environment. She also alleges that she was retaliated against for filing a complaint with the Equal

Employment Opportunity Commission (“EEOC”). Her allegations center around her interactions

with her coworkers and supervisors, especially her interactions with her coworker Guy Moran.

Stewart alleges numerous incidents to support her claims, which she divides into nine categories:

       1. Denials of certification;
       2. Removal from appointment as Security Manager;
       3. All meaningful work withdrawn and assigned to others;
       4. Denied access to special assignments and promotions;
       5. False accusations and threats to coworkers that [Stewart] was going to take away
          their security credentials;
       6. Ongoing offensive behavior by the System Manager;
       7. Directed to engage in meetings with contract audit teams and senior management
          then denied access to the meetings by System Manager;
       8. Accepted offer to a Command Center Lead Director position was withdrawn the
          following day due to the System Manager’s influence; and
       9. Reprised against for pointing out flaws in system security.

       (1) Denials of certification. Stewart unsuccessfully tried to obtain a Security+ certification.

To get this certification, an individual must pass an exam. Stewart took the exam and did not pass.

When offered the opportunity to retake the exam, she declined. As a result, she did not obtain the

Security+ certification. Stewart asserts that she was given extra work that prevented her from

being able to study for the exam, the exam was made harder to keep her from passing, and, unlike

other DFAS employees, she was not allowed to study for the exam during work hours.

       (2) Removal from appointment as Security Manager. Stewart was appointed as the

Departmental Cash Management Systems (“DCMS”) Information Systems Security Manager



       1
          For clarity, we will refer to the defendant and Stewart’s employer as DFAS throughout
this opinion.
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Case No. 19-3433, Stewart v. Esper


(“ISSM”) on December 30, 2013. The appointment did not include a salary increase, an official

change in work hours, an increase in supervisory responsibility, or any other benefit. The position

required a Security+ certification, but an individual without the certification could be appointed to

the position for up to six months, and could continue in the position if she thereafter obtained the

certification. Because Stewart never obtained the certification, she could not remain in the position

beyond June 30, 2014.

       The DCMS ISSM typically worked on two systems—Mainframe and Mid-Tier. On April

30, Moran notified Stewart that the ISSM position was being bifurcated and she would thereafter

only serve as ISSM for Mainframe. However, the bifurcation never occurred. Stewart claims

Moran attempted to remove her as the ISSM for Mid-Tier to harass her and as retaliation for

pointing out security flaws. Moran says his intent was to make the ISSM’s workload more

manageable.

       After Stewart failed the Security+ exam and indicated that she was not going to retake it,

Stewart’s supervisor, Leisha Hickman, began looking for someone to replace Stewart as ISSM.

After a replacement was found, Stewart was removed from the ISSM position on June 11. Stewart

was replaced by Tracy Nelson, a white woman who had a Security+ certification and had

previously served as the ISSM.

       (3) All meaningful work withdrawn and assigned to others. Stewart alleges numerous

instances of what she categorizes as DFAS withdrawing work from her. These instances fall into

four categories: (a) the Green Belt project; (b) denial of access to computer systems; (c) Moran

frustrating her ability to do her job; and (d) being forced to train her replacement.

       (a) The Green Belt project. Stewart was assigned to be part of a Green Belt project team.

When she was assigned, there was disagreement among various DFAS employees involved with



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Case No. 19-3433, Stewart v. Esper


the project about its viability and, after she started working on the project, Stewart had issues with

how it was being run. Stewart did not receive any disciplinary action as a result of her participation

in the project, was not threatened with any disciplinary action, and did not lose any material

benefits because of it. The only negative consequence from being part of the project team that she

complains of is “not being able to get management to provide the project a firm foundation” on

which to start, which resulted in “chaos and confusion.”

       (b) Denial of access to computer systems/programs. To help her complete a special

assignment, Stewart requested access to the “eMASS” computer system, but her request was

denied. Stewart says that she completed the forms to get access to eMASS and gave them to her

supervisor, but she was told that she could not have access. Although she admits that it was not

strictly necessary to have access to eMASS to complete the assignment, she claims that not having

access interfered with her ability to complete it because working on the assignment without access

to eMASS was like working “with [her] hands tied behind [her] back.” Stewart obtained access

to eMASS during the second month of the special assignment.

       (c) Moran’s Alleged Behavior. Stewart complains that Moran impeded her ability to

complete her work assignments in various ways. She alleges that Moran routinely objected to

what she was doing, systematically reduced her workload, found ways to frustrate her work,

belittled and marginalized her, and attempted to paint her as “an angry black woman” to others in

the office. Moran assigned a white female coworker the task of creating a “simple test plan

template,” a project which Stewart felt should have been hers. When Darryle Gross was Stewart’s

supervisor, he delegated to Moran the task of assigning work to Stewart. On October 19, 2015,

Stewart informed Gross that Moran was not assigning her meaningful work. Gross then instructed

Moran to provide Stewart with meaningful work. On November 13, after additional back-and-



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Case No. 19-3433, Stewart v. Esper


forth about Stewart’s not having proper qualifications for much of the work, Moran appointed

Stewart as DCMS Main Frame Configuration and Release Manager and requested that she help

with a Black Belt project.

       (d) Training her replacement. When Stewart was serving as Configuration Manager, her

supervisor, Abigail Parsons, had her train Kirk Shelby—a white male coworker who Stewart says

lacked experience—to be Configuration Manager. After he was trained, Shelby took over as

Configuration Manager from Stewart. According to Parsons, Shelby was trained to be the

Configuration Manager because Stewart was the only trained Configuration Manager, so there was

no one to cover the position if Stewart went on vacation or was otherwise unavailable. Thus,

according to Parsons, she had Stewart train Shelby and, after Shelby was trained, Shelby

temporarily served as the primary Configuration Manager to complete his training. Stewart was

given additional work to supplement the temporary decrease in her workload.

       (4) Denied access to special assignments and promotions. Stewart claims that she was

denied special assignments, but she does not point to any special assignments she was denied,

except the previously discussed “simple test plan template” that Moran assigned to a white female

coworker. Stewart also alleges that she applied for, but was not selected for, “a GS-13 2210

position.” She says that hiring for the position was through a competitive selection process, that

she was found qualified for the position, but that she was not interviewed for it. Stewart believes

that Jill Moser, a white female DFAS employee, was selected for the position. Stewart does not

know what Moser’s qualifications were, but she assumes that they were as good as hers.

       (5) False accusations and threats to coworkers that Stewart was going to take away their

security credentials. Stewart alleges that Moran spread a rumor about her to Diana Ritzert, another

DFAS employee, that Stewart was planning to revoke Ritzert’s security access. Stewart says she



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Case No. 19-3433, Stewart v. Esper


heard about this from Ritzert, but Ritzert remembers the conversation differently. She says that

Moran told her that either he or Stewart “was going to remove some access” from some

individuals, but she does not remember Moran’s saying anything about Stewart’s planning to

remove her security access in particular.

       (6) Ongoing offensive behavior by the System Manager. Stewart next asserts that she was

frequently harassed and belittled by Moran. First, she claims that Moran referred to her as “an

angry black woman” on numerous occasions. But she only points to one specific instance of this.

Second, while speaking with a coworker, Moran said “I loves me some Denzel Washington.”

Stewart says there had not been a conversation about movies or actors prior to his making this

comment. Third, Stewart claims that Moran made comments about her physical appearance,

including: “you get all those special assignments because you’re pretty and wear all those pretty

dresses.” Fourth, during a group conversation where Stewart was the only African-American

present, Moran asked her if she wanted to listen to the rapper Lil’ Wayne with him. Fifth, while

speaking with another coworker, Moran stated, “I haven’t been to the gun range lately.” Stewart

was behind a wall, so she did not see Moran when he made this comment or see whom Moran was

talking to. Despite not being mentioned in the conversation or being part of it, Stewart believes

that this comment was a threat directed toward her.

       (7) Directed to engage in meetings with contract audit teams and senior management then

denied access to the meetings by System Manager. Stewart’s next claim is that Moran denied her

access to an audit-readiness meeting. According to Stewart, Moran blocked the doorway to

prevent her from entering the meeting room and, in a loud and offensive manner, asked why she

was there and told her that her presence at the meeting was not required. She informed Moran that

her supervisor had instructed her to be there, stepped around him, entered the meeting room, and



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Case No. 19-3433, Stewart v. Esper


sat down. Moran then angrily came into the room, gathered up his belongings, and left. Stewart

claims that everyone in the room witnessed the incident, and she felt humiliated. However, nobody

present at the meeting heard raised voices or saw Moran block her access to the meeting room.

       (8) Accepted offer to a Command Center Lead Director position was withdrawn the

following day due to the System Manager’s influence. Stewart claims that Kenneth McTyer

offered her the position of DCMS Command Center Lead Director, and she accepted the position

on the spot, but soon thereafter, the offer was revoked without a reason being given. McTyer said

that Stewart was never offered the position; rather he only asked if she was willing to consider it.

McTyer also said that he did not have the authority to offer the position to her.

       (9) Reprised against for pointing out flaws in system security. Finally, Stewart alleges she

was retaliated against for pointing out security flaws. On two occasions, she notified Moran,

Ritzert, and Wayne Hansen about security flaws. It was shortly after this that Moran attempted to

remove Stewart as the ISSM for Mid-Tier and that she was removed from being the ISSM

altogether. DFAS contends that the reason for her removal from the ISSM position was not that

she pointed out security flaws, but that she did not obtain the required Security+ certification.

       On September 14, 2015, Stewart filed a complaint with the EEOC alleging that, since 2013,

she had been subjected to disparate treatment discrimination and a hostile work environment. The

EEOC rendered a final agency decision finding insufficient evidence to support Stewart’s claims.

Stewart then filed a complaint in district court alleging disparate treatment discrimination based

on her race, color, and sex; a hostile work environment; and retaliation. The district court granted

DFAS’s motion for summary judgment, which Stewart now appeals.




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Case No. 19-3433, Stewart v. Esper


                                                 II.

        We review a district court’s grant of summary judgment de novo, viewing all evidence in

the light most favorable to the non-moving party. Bormuth v. Cty. of Jackson, 870 F.3d 494, 503

(6th Cir. 2017) (en banc).

                                A. Disparate Treatment Discrimination

        Title VII provides that an employer may not “discriminate against any individual with

respect to [her] compensation, terms, conditions, or privileges of employment, because of such

individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). Where, as

here, the plaintiff relies on circumstantial evidence to prove her claim, we apply the burden-shifting

framework from McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this framework,

the plaintiff must first make out a prima facie case of discrimination, which requires the plaintiff

to show that: (1) she is a member of a protected class; (2) she was subjected to an adverse

employment action; (3) she was qualified for the position; and (4) similarly situated non-protected

employees were treated more favorably. Jackson v. VHS Detroit Receiving Hosp., Inc., 814 F.3d

769, 776 (6th Cir. 2016). DFAS does not contest that Stewart is a member of a protected class or

that she is qualified.

        An adverse employment action is a “materially adverse change in the terms or conditions

of . . . employment because of [the] employer’s conduct.” Mitchell v. Vanderbilt Univ., 389 F.3d

177, 182 (6th Cir. 2004) (alterations in original) (quoting Kocsis v. Multi–Care Mgmt., Inc.,

97 F.3d 876, 885 (6th Cir. 1996)). An adverse employment action “constitutes a significant change

in employment status, such as hiring, firing, failing to promote, reassignment with significantly

different responsibilities, or a decision causing a significant change in benefits.” Burlington

Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998). Other material adverse actions such as “a less



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Case No. 19-3433, Stewart v. Esper


distinguished title, diminished options for advancement, or other unique indices” can constitute

adverse employment actions. Freeman v. Potter, 200 F. App’x 439, 442 (6th Cir. 2006) (citations

omitted). But not every act affecting an individual’s employment constitutes a materially adverse

change. McMillian v. Potter, 130 F. App’x 793, 796 (6th Cir. 2005). “Reassignments without

changes in salary, benefits, title, or work hours usually do not constitute adverse employment

actions.” Policastro v. Nw. Airlines, Inc., 297 F.3d 535, 539 (6th Cir. 2002) (citations omitted).

And de minimis employment actions are not materially adverse. Bowman v. Shawnee State Univ.,

220 F.3d 456, 462 (6th Cir. 2000). Whether something constitutes an adverse employment action

is viewed objectively, and the question is whether the employment action was “objectively

intolerable to a reasonable person.” Policastro, 297 F.3d at 539.

       To show that a similarly situated non-protected employee was treated more favorably, the

plaintiff must show that the employee who was treated more favorably is similar to the plaintiff in

“all relevant respects.” Ercegovich v.Goodyear Tire & Rubber Co., 154 F.3d 344, 353 (6th Cir.

1998) (emphasis in original). The other employee or employees ordinarily “must have dealt with

the same supervisor, have been subject to the same standards and have engaged in the same

conduct without such differentiating or mitigating circumstances that would distinguish their

conduct or the employer’s treatment of them for it.” Younis v. Pinnacle Airlines, Inc., 610 F.3d

359, 364 (6th Cir. 2010) (quoting Mitchell v. Toledo Hosp., 964 F.2d 577, 583 (6th Cir. 1992)).

For the plaintiff to meet her burden, she must do more than make “generalized and vague

allegations” that another employee was treated better than her. See Frazier v. USF Holland, Inc.,

250 F. App’x 142, 147 (6th Cir. 2007).

       If a plaintiff can meet her burden to establish a prima facie case of discrimination, the

burden shifts to the employer to proffer a legitimate, nondiscriminatory reason for its decision.



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Case No. 19-3433, Stewart v. Esper


Upshaw v. Ford Motor Co., 576 F.3d 576, 584 (6th Cir. 2009). If the employer carries its burden,

the plaintiff must prove by a preponderance of the evidence that the employer’s offered reasons

were pretextual. Id.

        The district court concluded that Stewart was unable to establish a prima facie case of

discrimination because she could neither establish that she was subjected to an adverse

employment action nor that similarly situated non-protected employees were treated more

favorably. In addition, the district court found that even if Stewart could establish a prima facie

case of discrimination, she did not establish that the proffered legitimate, nondiscriminatory

reasons offered by DFAS for many of the actions of its employees were pretextual. We agree with

the district court that Stewart has not met her prima facie burden.

        (1) Denials of certification. Stewart complains that she was denied “required and/or job-

related certifications.” The only certification she points to having been denied is the Security+

certification. But she merely claims that individuals outside her protected class were treated more

favorably, without identifying any particular similarly situated employee. See Younis, 610 F.3d at

364 (requiring the plaintiff to identify a particular individual or individuals as comparators).

Further, even if Stewart could establish a prima facie case, she has not overcome DFAS’s proffered

reason for her being denied the certification—that she failed the certification exam and refused to

retake it.

        (2) Removal from appointment as Security Manager. Stewart has not established that

Moran’s unsuccessful attempt at bifurcating the ISSM position or that her removal from the

position were adverse employment actions. Moran’s unsuccessful attempt at bifurcating the

position was just that—unsuccessful—and Stewart has not shown any harm caused by it. And her

removal as the ISSM—which left her salary, work hours, and supervisory authority unchanged—



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Case No. 19-3433, Stewart v. Esper


occurred only nineteen days before her six-month term was set to expire. At most, this is a de

minimis employment action. See Bowman, 220 F.3d at 462.

       (3) All meaningful work withdrawn and assigned to others. Stewart alleges several ways

in which meaningful work was taken away from her and given to others. In this category she

includes her assignment to a Green Belt project team, but her only complaint about the project is

that it was dysfunctional, not that anything materially adverse resulted from it. The initial denial

of Stewart’s request for eMASS access was a “mere inconvenience,” which does not rise to the

level of being materially adverse, as she was able to complete the project without access to it, and

she received access within a month. See Kocsis, 97 F.3d at 886. Stewart also includes several

actions by Moran in this category. Her allegation that a single project was assigned to an unnamed

white woman rather than to her, where the record includes numerous projects that Stewart was

assigned, would at most be a de minimis employment action. See Bowman, 220 F.3d at 462.

Stewart’s complaint to Gross about Moran’s not assigning her meaningful work resulted in her

receiving sufficient work within three and a half weeks. This short and temporary period without

sufficient work does not rise to the level of a materially adverse action. Stewart’s remaining

allegations about Moran—such as his objecting to what she was doing, belittling her, or

marginalizing her—do not point to any specific acts that he did and are thus too generalized and

vague to constitute a prima facie case of discrimination. See Frazier, 250 F. App’x at 147.

       Stewart also cannot show that being asked to train Shelby was an adverse employment

action: the role-reversal was temporary, her salary remained the same, and she was given

additional work to supplement her reduced workload. See Bowman, 220 F.3d at 462 (stating that

temporary actions not resulting in a loss of salary or benefits are not materially adverse

employment actions). Nor has she presented any evidence that DFAS’s proffered reason for



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Case No. 19-3433, Stewart v. Esper


having her train Shelby and having him temporarily take over the position—to have an additional

person trained for the job in case Stewart was unavailable—was pretextual.

       (4) Denied access to special assignments and promotions. Other than the Command Center

Lead Director position, discussed below, the only promotion that Stewart alleges she was denied

is a GS-13 position that she applied for and that she believes Moser, a white woman, received. But

Stewart cannot establish a prima facie case because she points to nothing in the record to show

that Moser was similarly situated: Moser worked in a different section, had a different supervisor,

and Stewart does not know what her qualifications were. See Toledo Hosp., 964 F.2d at 583.

Stewart also claims to have been denied the opportunity to work on special assignments, but

elsewhere claims to have been given special assignments “over and over again.” And she

contradicts herself by claiming that being assigned special assignments is a form of punishment.

Because of these contradictions, Stewart has not shown that she was denied the opportunity to

work on special assignments or that not being given them would be materially adverse.

       (5) False accusations and threats to coworkers that Stewart was going to take away their

security credentials. Stewart alleges that Moran falsely accused her of planning to revoke Ritzert’s

security access, but she does not point to anything materially adverse that resulted from this

incident. Spreading rumors like this falls into the category of “petty slights or minor annoyances

that often take place at work” but that are not materially adverse. Burlington N. & Santa Fe Ry.

Co. v. White, 548 U.S. 53, 68 (2006).

       (6) Ongoing offensive behavior by System Manager. Stewart claims that a series of

offensive comments made by Moran either to her or to other DFAS employees constitutes

discrimination. However, an adverse employment action requires a “materially adverse change in

the terms and conditions of employment” Hollins v. Atl. Co., Inc., 188 F.3d 652, 662 (6th Cir.



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Case No. 19-3433, Stewart v. Esper


1999) (citation omitted). Moran’s comments themselves do not constitute such a materially

adverse change, nor does Stewart allege that the comments resulted in any such change.

       (7) Directed to engage in meeting with contract audit teams and senior management then

denied access to the meetings by System Manager.              Next, Stewart alleges that Moran

unsuccessfully attempted to prevent her from attending a meeting. But Stewart was only briefly

held up outside the meeting room, she attended the meeting, and she was not late for it. Even if

people overheard Moran yelling at her, the incident and Stewart’s feeling humiliated by it is a petty

slight and does not constitute an adverse employment action. Burlington N. & Santa Fe Ry., 548

U.S. at 68; cf. also Farragher v. City of Boca Raton, 524 U.S. 775, 778 (1998) (holding that our

review must “filter out complaints attacking the ordinary tribulations of the workplace, such as the

sporadic use of abusive language, gender-related jokes, and occasional teasing” (citation and

internal quotation marks omitted)).

       (8) Accepted offer to a Command Center Lead Director position was withdrawn the

following day due to the System Manager’s influence. Stewart claims that McTyer offered her the

Commander Center Lead Director position, then revoked it. She does not explain how this position

would have materially affected her salary, benefits, or responsibilities. See Kocsis, 97 F.3d at 886

(holding that a job transfer was not an adverse employment action because the plaintiff had the

same “rate of pay and benefits, and her duties were not materially modified”). Instead, she only

alleges that this position would have “very high visibility” and is a stepping stone to advancement.

Although the denial of a more prestigious position can amount to an adverse employment action,

Stewart has the burden to show that this position was more prestigious. See Freeman, 200 F.

App’x at 444-45. But she has only provided conclusory statements to that effect without providing

evidence. Therefore, she has not met her burden to show that revoking this position would



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Case No. 19-3433, Stewart v. Esper


constitute an adverse employment action. Stewart has also not shown that the reason proffered by

DFAS—that McTyer did not have the authority to offer her the position in the first place—was

pretextual.

       (9) Reprised against for pointing out flaws in system security. Stewart’s final allegation is

that she was removed from the ISSM position because she pointed out security flaws in the system.

On its face, this allegation fails because she claims that she was removed in retaliation for pointing

out security flaws, not that she was removed because of her race, color, or sex.

       Even when viewed together, Stewart’s allegations do not demonstrate that she suffered a

materially adverse change in the terms or conditions of her employment. She also has not shown

that she was treated less favorably than individuals outside of her protected class. And, even if we

were to assume that Stewart could establish a prima facie case of discrimination based on any of

these theories, she has not established that the legitimate, non-discriminatory reasons proffered by

DFAS for the above-described actions were pretextual. Therefore, the district court did not err by

granted summary judgment on Stewart’s discrimination claim.

                                    B. Hostile Work Environment

       To establish a prima facie case of a hostile work environment based on circumstantial

evidence, a plaintiff must show that: (1) she is a member of a protected class; (2) she was subjected

to unwelcome harassment; (3) the harassment was based on her race, color, or sex; (4) the

harassment was sufficiently severe or pervasive to alter the conditions of employment and create

an abusive working environment; and (5) the employer knew or should have known about the

harassment and failed to act. Williams v. CSX Transp. Co., Inc., 643 F.3d 502, 511 (6th Cir. 2011);

see also Smith v. Rock-Tenn Servs., Inc., 813 F.3d 298, 307 (6th Cir. 2016) (addressing hostile

work environment based upon sex). The conduct must be objectively hostile or abusive and the



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victim must also subjectively perceive the environment to be abusive. Harris v. Forklift Sys., Inc.,

510 U.S. 17, 21-22 (1993) The alleged incidents of unwelcome harassment are to be considered

together to determine whether, under the totality of circumstances, they constitute a hostile work

environment. Williams v. Gen. Motors Corp., 187 F.3d 553, 562 (6th Cir. 1999).

       “In determining whether an actionable hostile work environment claim exists, we look to

all the circumstances, including the frequency of the discriminatory conduct; its severity; whether

it is physically threatening or humiliating, or a mere offensive utterance; and whether it

unreasonably interferes with an employee’s work performance.” Nat’l R.R. Passenger Corp. v.

Morgan, 536 U.S. 101, 116 (2002) (internal quotation marks and citation omitted). “Simple

teasing, [] offhand comments, and isolated incidents (unless extremely serious) will not amount to

discriminatory changes in the terms and conditions of employment.” Faragher, 524 U.S. at 788

(internal quotation marks and citations omitted).

       Stewart’s hostile work environment claim is based on the same factual allegations as her

disparate treatment claim. DFAS concedes the first element of a prima facie claim. The district

court found that the allegations that directly involved Moran were sufficient to create a genuine

issue of material fact as to whether she was subjected to unwelcome harassment because of the

“indisputably strained relationship” between Stewart and Moran. But, even assuming that Moran’s

harassing conduct was based on Stewart’s race, color, or sex, the district court concluded that the

conduct was not sufficiently severe or pervasive. As to the other allegations, the district court did

not address whether they constituted unwelcome harassment, but granted summary judgment

because there was no evidence in the record which would allow a reasonable jury to conclude that

the actions were based on Stewart’s race, color, or sex.




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       We agree with the district court that Stewart has not established a prima facie case. With

the exception of the allegations related to Moran, there is nothing in the record to suggest any of

the actions were based on Stewart’s race, color, or sex. And even assuming the actions by Moran

were based on Stewart’s race, color, or sex, the severe and pervasive requirement is a high bar.

See Phillips v. UAW Int’l, 854 F.3d 323, 328 (6th Cir. 2017). Title VII does not create a “general

civility code” and sporadic abusive language or offensive comments are not sufficient to support

a claim. Faragher, 524 U.S. at 788 (citation omitted). On this record, Stewart’s complaints about

Moran do not amount to conduct so severe or pervasive as to amount to a change in the terms and

conditions of her employment. Therefore, the district court did not err in granting summary

judgment on Stewart’s hostile work environment claim.

                                           C. Retaliation

       To establish a prima facie case of retaliation, the plaintiff must show that: (1) she engaged

in Title VII protected activity; (2) the employer knew that she engaged in that protected activity;

(3) the employer subsequently took an adverse employment action against her; and (4) the adverse

action was causally connected to the protected activity. Ladd v. Grand Trunk W. R.R., Inc.,

552 F.3d 495, 502 (6th Cir. 2009). DFAS does not contest the first two elements.

       Stewart’s relies on the same evidence for her retaliation claim as she does for her

discrimination and hostile work environment claims. However, as already discussed, she fails to

establish that she suffered from any adverse employment action.

       Stewart’s retaliation claim also fails because she does not show a causal connection

between her EEOC complaint and the actions she claims were retaliation for making the complaint.

See Abbott v. Crown Motor Co., Inc., 348 F.3d 537, 543 (6th Cir. 2003) (requiring the plaintiff to

produce evidence “from which one could draw an inference that the employer would not have



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Case No. 19-3433, Stewart v. Esper


taken the adverse action against the plaintiff had the plaintiff not engaged in activity that Title VII

protects”). Because she uses the same evidence to support her retaliation claim as she uses for her

other claims, the vast majority of the alleged incidents occurred before she filed her EEOC

complaint. In response to this temporal problem, Stewart merely claims that “many” or “most” of

the “discriminatory acts, statements/and or omissions [made by Gross, Parsons, or Moran, or]

identified in the evidence,” occurred after she filed her EEOC complaint, without identifying the

specific acts, statements, or omissions to which she is referring. Without more, Stewart cannot

establish a causal connection.

       Moreover, if some of the actions occurred before and some after she filed her complaint,

she has not shown a causal connection between the complaint and the alleged retaliatory actions

since they were part of an ongoing pattern that predated the complaint. See Eckerman v. Tenn.

Dep’t of Safety, 636 F.3d 202, 209 (6th Cir. 2010) (requiring evidence that the adverse employment

action would not have occurred “but for [the plaintiff’s] engagement in the protected activity”).

For example, the one incident which she specifically alleges occurred after September 14, Moran’s

not giving her meaningful work, was preceded by what she claims was several years of harassment

by Moran. In addition, any of the allegations that could be construed as having potentially occurred

after September 14 are so general and vague that the record is insufficient to establish a causal

connection between them and her EEOC complaint. See Abbot, 348 F.3d at 543 (requiring the

plaintiff to produce sufficient evidence to allow an inference to be drawn between the protected

activity and the retaliatory act). Therefore, the district court did not err in granting summary

judgment on Stewart’s retaliation claim.

       AFFIRMED.




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