                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 08a0727n.06
                           Filed: November 24, 2008

                                             No. 07-6232

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


DIANA CECIL,                                               )
                                                           )         ON APPEAL FROM THE
        Plaintiff-Appellant,                               )         UNITED STATES DISTRICT
                                                           )         COURT FOR THE WESTERN
v.                                                         )         DISTRICT OF KENTUCKY
                                                           )
LOUISVILLE WATER COMPANY; JOHN L.                          )         OPINION
HUBER; GREGORY C. HEITZMAN, Vice-                          )
President; ROBERT K. MILLER, Vice-President;               )
MICHAEL STURGEON, Human Resources; JOHN                    )
ANDERSON; RONALD D. EILER,                                 )
                                                           )
        Defendants-Appellees.                              )




BEFORE:         KENNEDY, SUTTON, and McKEAGUE, Circuit Judges.

        McKEAGUE, Circuit Judge. At oral argument, counsel for appellant Diana Cecil

analogized her client’s case to a pointillist painting,1 in which each allegedly discriminatory incident

is a tiny dot in the bigger picture of disparate treatment, hostile work environment, and retaliation

by her former employer, the Louisville Water Company (“LWC”). Because we are unable to

perceive anything but broad brush strokes and general, conclusory allegations, we AFFIRM the

district court’s grant of summary judgment in favor of LWC.

        1
        “Pointillism” is a technique of painting using tiny dots of various pure colors, which when
viewed from a distance are blended by the viewer’s eye. OXFORD ENGLISH DICTIONARY (3d ed.
2006). It was developed particularly by French neo-impressionist painters as a means of producing
luminous effects. Id.
No. 07-6232
Cecil v. Louisville Water Co.

                                                  I

A. Factual Background

       In October 2001, LWC, a municipal water utility, hired Cecil as a Right of Way Associate.

She was responsible for drafting deeds of easement and purchase agreements, and for meeting with

property owners to obtain the easements on which LWC installed its water facilities. At the time of

her hire, Wayne Kimbel, a male, also worked as a Right of Way Associate. Cecil’s “process owner,”

or supervisor, was Ron Eiler.

       Almost immediately, Cecil became unhappy with her employment at LWC. She claims Eiler

assigned her administrative work and never asked Kimbel to complete similar clerical tasks. She

also testified that Eiler would leave files or envelopes on her desk in the morning, but would

personally go over plans and explain projects with Kimbel. In April 2002, Cecil claims she

volunteered for the River Bank Infiltration (“RBI”) project—a high-profile capital project—but that

Eiler awarded the project to Kimbel and assigned Cecil a statistical cost analysis project instead. She

alleges her project was “unattainable” because the necessary statistics had not been compiled. When

she asked for help on the project, she claims Eiler denied her request and mocked her.

       Cecil also argues that Eiler consistently denied her training. While she received no training

at the beginning of her employment, Kimbel attended a negotiations seminar. Kimbel also received

field training with the survey crew in 1999 and training on booster station placement in 2004. At

one point, in February 2002, Cecil obtained permission to schedule a field training to visit

construction sites. Eiler apparently pulled the training and offered it to Kimbel. Another time, in



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Cecil v. Louisville Water Co.

April 2002, Cecil claims she requested survey training to better understand engineering plans. After

denying it, Eiler apparently stated “You just want to play in the dirt!”

       Cecil further alleges that she was subjected to “open mockery and verbal abuse” by Eiler and

other male LWC employees. Early in her employment, Eiler told her that she “dressed too nice” and

that she would “intimidate property owners” if she dressed that way in the field. After Eiler denied

her survey training in April 2002, Cecil claims he laughed and said she reminded him of Lisa

Douglas, Eva Gabor’s character on the television show Green Acres. This humiliated her because

the character was a dim-witted, overly-dressed woman in a rural environment. Another LWC

employee, Sheila Lowe, contends that on various occasions Eiler said the field was no place for a

lady, and that there were spiders and snakes out there. Further, in May 2002, LWC’s Vice President

of Human Resources, James Wehrle, told two male co-workers to “pass it around that Diana is easy.”

       Cecil also claims the male employees at LWC embarrassed and intimidated her. She alleges

that Eiler constantly monitored the arrival and departure times of the women he supervised. She

alleges that Eiler treated her unpleasantly, humiliated her, and told her to talk to Debra Vaughn,

another employee in the Right of Way department, whenever she asked for help.2 In January 2002,

Cecil claims two male survey technicians stood over her until she produced a file for a land surveyor,

Brian Bobbitt. Apparently, Eiler knew she did not have the file, but he did not intervene. In March

2002, Cecil also alleges Eiler became angry and embarrassed her in a company meeting. Finally,


       2
       Vaughn also filed a lawsuit against LWC, alleging disparate treatment, hostile work
environment, and retaliation. See Vaughn v. Louisville Water Co., No. 3:03CV-541-S, 2007 WL
2746669 (W.D. Ky. Sept. 18, 2007). Vaughn’s appeal from the district court’s grant of summary
judgment in favor of LWC is also before this court.

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No. 07-6232
Cecil v. Louisville Water Co.

Cecil claims that one of the project engineers, Anthony Hewitt, refused to accompany her to a job

site early in her employment. In April 2002, after she had an unpleasant encounter on a job site with

Hewitt, Eiler apparently refused to speak to him about his behavior.

       In May 2002, after Wehrle’s comment about being “easy,” Cecil discussed her difficulties

with Debra Vaughn. Vaughn told Rhonda Plunkett, LWC’s Director of Cultural Diversity. Plunkett

then discussed the complaint with John Anderson, LWC’s Employee Relations Manager. Anderson

met with Cecil and began an investigation. On September 6, 2002, Anderson cited Eiler with a code

of conduct violation.3 He referred to Eiler’s “inappropriate and unnecessary comments and

statements that leave a ‘perception’ of unacceptable biases towards certain individuals and/or groups

of people.” J.A. at 254.

       A few days after Anderson cited Eiler with a violation, Cecil claims another process owner,

Patti Kaelin, told her that Eiler was writing derogatory remarks about her and other female

employees in the margins of “green bar sheets,” the payroll sheets that were distributed on the floor.

Cecil claims she reported this. The same day, Eiler was removed from his position and was later

transferred to a resource coordinator position, apparently due to a reorganization of the Right of Way

Department.

       Cecil contends that after Eiler’s reassignment, he continued to harass her. He was permitted

to remain in the same location for over a month, even though he should have been in a different




       3
       Section 1.1 of the LWC Employee Code of Conduct and Performance Policy provides that
employees shall “[m]aintain quality and performance standards.” J.A. at 268.

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No. 07-6232
Cecil v. Louisville Water Co.

building. Even after he relocated in November 2002, Cecil claims Eiler periodically visited her floor

for no apparent business purpose.

       Project managers and engineers were also apparently uncooperative and refused to work with

Cecil after Eiler was transferred. Cecil contends Anthony Hewitt was so angry that he stopped

speaking to her. In October 2002, she apparently reported this to her new process owner, Cindy

Kowalski, who told her that she would have to wait until emotions settled and Hewitt was able to

work through it. She alleges that she addressed her problems with the project managers in a meeting

with Greg Heitzman, the Senior Vice President of Operations. Heitzman apparently told Cecil that

was the “ripple effect” and that she should have thought about it before she came forward.

       Cecil also claims she received a negative performance review and was excluded from a

meeting in October 2002 as retaliation for complaining about Eiler.

       On January 9, 2003, Cecil filed a charge against LWC with the Equal Employment

Opportunity Commission (“EEOC”), alleging sex discrimination under Title VII of the Civil Rights

Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq. On April 5, 2004, she filed a complaint of

discrimination with the Department of Labor, Office of Federal Contract Compliance Programs

(“OFCCP”). On June 10, 2004, the OFCCP informed her that it had notified LWC of her complaint

and would begin an investigation.

       Cecil alleges various acts of retaliation that occurred after she complained to the EEOC and

OFCCP. In October 2003, after returning from medical leave, her tank site and easement acquisition

duties were reassigned to a part-time contract employee, David Benedict. Her tank site duties were

ultimately removed from her responsibilities in June 2004. Cecil also alleges that in March 2004,

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Cecil v. Louisville Water Co.

she was required to relocate her desk so that she was adjacent to Eiler’s immediate supervisor, which

made her uncomfortable. In June 2004, she claims she was excluded from a plant tour. In August

2004, after the OFCCP on-site investigation, Cecil received an unsatisfactory review from her then-

process owner, Patti Kaelin. She also alleges that in April 2005, Kaelin set unattainable goals for

her by proposing that she acquire eighty easements for the year. Finally, throughout this time, Cecil

claims she received threatening phone calls and that LWC employees stalked her.

       Cecil also alleges that the discipline she received was retaliatory. On July 2, 2004, Cecil was

warned for an outburst at a June 2004 meeting in which she disagreed with Kaelin over proposed

language in an easement agreement. She was not formally disciplined for this conduct. Cecil was

cited on July 15, 2004 with a Class I violation for violating LWC’s tardiness policy.4 On July 16,

2004, she was assessed another Class I violation for leaving her work station during work hours.5

Cecil received only a 1% salary increase in 2005 due to her two Class I violations.6 She was again

cited for tardiness on October 7, 2005.




       4
         Under section 1.28 of the LWC Employee Code of Conduct and Performance Policy,
employees are expected to “[m]aintain an acceptable attendance and punctuality record as a
condition of employment, including reporting promptly to the assigned workstation at the assigned
start time . . . and following the Company’s Tardiness standard.” J.A. at 270. “Tardiness is defined
as 10 minutes beyond the assigned start time.” J.A. at 272.
       5
       Section 1.30 of the LWC Employee Code of Conduct and Performance Policy requires
employees to obtain permission before leaving an assigned work station during work hours.
       6
         Initially, Cecil received a 0% increase because LWC mistakenly indicated that she was
assessed a Class II violation in 2004. The company revised its findings and ultimately determined
that she was entitled to a 1% increase because she was assessed two Class I violations in 2004.

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Cecil v. Louisville Water Co.

       Cecil’s employment with LWC ended on November 2, 2005. The company claims she was

discharged because she refused to sign a Post-Decisional Leave Statement and a Personal Quality

Improvement Commitment (“PQIC”) Statement, or “last chance agreement,” related to her second

violation of LWC’s tardiness policy.

B. Procedural History

       After receiving a right to sue letter from the EEOC, and while she was still employed at

LWC, Cecil timely commenced this action in the United States District Court for the Western

District of Kentucky.7 She asserted claims of gender discrimination, hostile work environment, and

retaliation. On two occasions thereafter, LWC’s Chief Executive Officer, John Huber, sent an email

to all LWC employees informing them of the discrimination lawsuits filed against the company.

       After completion of discovery, and after Cecil had been discharged, LWC moved for

summary judgment on all claims. Before the district court ruled on the motion, the OFCCP issued

a Notification of Results of Investigation (“NORI”) stating that it had found sufficient evidence to

conclude that sexual harassment had occurred and a hostile work environment existed at LWC. The

district court permitted Cecil to supplement the record with the NORI, holding that it was admissible

as an investigative report of a government agency under Rule 803(8)(C) of the Federal Rules of

Evidence. It then granted LWC’s summary judgment motion in full. Cecil timely appealed.

                                                 II

A. Standard of Review and Summary Judgment Standard


       7
          Upon receipt of a right to sue letter from the EEOC, a claimant has 90 days in which to
initiate civil proceedings. 42 U.S.C. § 2000e-5(f)(1).

                                                -7-
No. 07-6232
Cecil v. Louisville Water Co.

       We review a district court’s grant of summary judgment de novo. White v. Baxter Healthcare

Corp., 533 F.3d 381, 389 (6th Cir. 2008). Summary judgment is proper “if the pleadings, the

discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as

to any material fact and that the movant is entitled to judgment as a matter of law.” FED . R. CIV . P.

56(c). A “genuine” dispute is one that would permit a reasonable jury to return a verdict in favor of

the nonmoving party. Henderson v. Walled Lake Consol. Schs., 469 F.3d 479, 487 (6th Cir. 2006).

A fact is “material” only if its resolution could affect the outcome of the litigation under the

applicable law. Id. At the summary judgment stage, the district court must construe the evidence

and draw all reasonable inferences in favor of the nonmoving party. Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 587 (1986); Jones v. Potter, 488 F.3d 397, 403 (6th Cir. 2007).

B. Disparate Treatment

       Title VII makes it “an unlawful employment practice for an employer . . . to discriminate

against any individual with respect to his compensation, terms, conditions, or privileges of

employment, because of such individual’s . . . sex.” 42 U.S.C. § 2000e-2(a)(1). Cecil alleges that

the following discrete acts by LWC constituted discrimination because of her sex: 1) denying her

training; 2) giving her unattainable and undesirable work assignments; 3) outsourcing her job

responsibilities; 4) disciplining her; 5) giving her only a 1% salary raise in 2004; and 6)

discharging her. Although LWC argues that some of these acts are barred by Title VII’s 300-day

statute of limitations, see Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002), we decline

to address that question because even the arguably untimely acts fail on the merits.



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Cecil v. Louisville Water Co.

       A plaintiff may establish discrimination by either direct or circumstantial evidence. Grizzell

v. City of Columbus Div. of Police, 461 F.3d 711, 719 (6th Cir. 2006). Direct evidence is “evidence

that proves the existence of a fact without requiring any inferences.” Id. It is evidence which, “if

believed, requires the conclusion that unlawful discrimination was at least a motivating factor in the

employer’s actions.” Jacklyn v. Schering-Plough Healthcare Prods. Sales Corp., 176 F.3d 921, 926

(6th Cir. 1999). Cecil argues that the evidence of Eiler’s specific bias against females, the

company’s own finding of such a “perceived bias,” and the results of the OFCCP investigation

constitute direct evidence of discrimination. At best, however, the company’s finding only

acknowledges that Eiler “periodically” made inappropriate comments that left a “‘perception’ of

unacceptable biases towards certain individuals,” J.A. at 254; it does not concede that an objectively

discriminatory environment actually existed for Cecil individually. And although the NORI may

acknowledge a discriminatory environment at LWC generally, its findings do not specifically refer

to Cecil and it defers any individual findings to the federal court. J.A. at 297. Because this evidence

does not require us to conclude that Cecil was subjected to discrimination, it is not direct evidence.

       In the absence of direct evidence, we analyze discrimination claims under the burden-shifting

framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Vincent v. Brewer

Co., 514 F.3d 489, 494 (6th Cir. 2007). Where, as here, a case is at the summary judgment stage,

“the plaintiff must submit evidence from which a reasonable jury could conclude both that she has

established a prima facie case of discrimination and that the defendant’s legitimate,

nondiscriminatory reason for its action, if any, is pretext for unlawful discrimination.” Id.; see also

McDonnell Douglas, 411 U.S. at 802-04. To establish a prima facie case, a plaintiff must show that

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Cecil v. Louisville Water Co.

1) she is a member of a protected class; 2) she was subjected to an adverse employment decision;

3) she was qualified for the position; and 4) she was replaced by a person outside the protected class,

or treated differently than similarly situated non-protected employees. Vincent, 514 F.3d at 494.

        Even were we to assume, for the sake of argument, that Cecil has satisfied her burden of

establishing a prima facie case with respect to each of the alleged incidents of discrimination, LWC

has nonetheless offered legitimate, nondiscriminatory reasons for its actions. The employer need

only articulate a nondiscriminatory rationale, Hartsel v. Keys, 87 F.3d 795, 800 (6th Cir. 1996), and

the parties do not dispute that LWC has done so here. As to the lack of training, Kimbel testified

that “the workload was such that . . . there just wasn’t the ability to provide a lot of ” formal training.

Kimbel Dep. 24, J.A. at 563. The February 2002 training was canceled because LWC was in the

process of giving Cecil responsibility for transmission mains, and the training was unrelated to those

duties. Cecil even testified that she did not “have a problem with [that training] being pulled, it was

the fact that I was not told.” Cecil Dep. 314-15, J.A. at 443. Further, Eiler exercised his business

judgment in assigning projects, while the outsourcing and reassignment of Cecil’s duties was due

to a departmental reorganization. Cecil’s disciplinary violations were based on her admitted failure

to arrive and remain at her work station on time, and the reduced 1% salary increase was a result of

those violations. Finally, Cecil was discharged because she refused to sign the PQIC Statement

requiring her to improve her attendance.

        Cecil cannot demonstrate that LWC’s legitimate reasons for its actions were in fact only a

pretext for intentional discrimination. To establish pretext, the plaintiff must show that the

employer’s proffered reasons 1) had no basis in fact, 2) did not actually motivate the challenged

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No. 07-6232
Cecil v. Louisville Water Co.

conduct, or 3) were insufficient to motivate the challenged conduct. Grace v. USCAR & Bartech

Tech. Servs., LLC, 521 F.3d 655, 677 (6th Cir. 2008); Cicero v. Borg-Warner Auto., Inc., 280 F.3d

579, 589 (6th Cir. 2002). “[A]s long as an employer has an honest belief in its proffered

nondiscriminatory reason” for taking an adverse employment action, however, “the employee cannot

establish that the reason is pretextual simply because it is ultimately shown to be incorrect.”

Majewski v. Automatic Data Processing, Inc., 274 F.3d 1106, 1117 (6th Cir. 2001). “An employer

has an honest belief in its rationale ‘when it reasonably relied on the particularized facts that were

before it at the time the decision was made.’” Michael v. Caterpillar Fin. Servs. Corp., 496 F.3d

584, 599 (6th Cir. 2007) (quoting Majewski, 274 F.3d at 1117). The key inquiry is whether the

employer made a “reasonably informed and considered decision,” not whether the decisional process

was optimal or “left no stone unturned.” Id. at 598-99 (quoting Smith v. Chrysler Corp., 155 F.3d

799, 807 (6th Cir. 1998)).

       Cecil first attempts to show pretext by challenging the factual basis and sufficiency of LWC’s

reasons for her discipline and discharge. She argues that she should not have been disciplined for

her conduct at the June 2004 meeting in which she disagreed with her then-process owner, Patti

Kaelin, over proposed language in an easement agreement. But she was not disciplined for this

conduct; she was only warned. Cecil also argues that she was not a tardy problem under the

company’s flex policy, which she says allowed her to come in late on days when she had worked late

the night before. However, she had already been given permission to work from 9:00 am to 6:00 pm

under the flex policy, and she still was unable to be at work on time. Even if she had been permitted



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No. 07-6232
Cecil v. Louisville Water Co.

to take more liberties under the policy in the past, she admitted that when Kaelin came in as process

owner, everyone was expected to be on time. Cecil Dep. 329-35, J.A. at 446-48.

       Cecil also argues that she was not technically late because LWC’s policy defined tardiness

as ten minutes beyond the assigned start time. But according to LWC’s documentation, she was over

ten minutes late on many occasions. See J.A. at 246 (indicating Cecil was over ten minutes late

twice in February 2004, six days in May 2004, eleven days in June 2004, and five days in the first

two weeks of July 2004); J.A. at 250 (indicating Cecil was over ten minutes late five days in

September 2005 and twice in the first week of October 2005). The record also indicates that LWC

informed Cecil on September 21, 2005—before she was cited for her second tardiness

violation—that the ten-minute grace period was meant for occasional and unavoidable situations,

not for everyday abuse. J.A. at 250. Yet she was late to work for two and a half straight weeks in

the last two weeks of September 2005 and the first week of October 2005. J.A. at 250. Counsel’s

unsupported assertion at oral argument that LWC’s system for keeping track of arrival times was

somehow inaccurate is insufficient to call into question the company’s honest belief that Cecil was

chronically tardy. Based on all of the facts before LWC, the company had a reasonable basis and

an honestly held belief that Cecil’s excessive tardiness was grounds for discipline.

       Cecil’s discharge was also reasonable under LWC’s Employee Code of Conduct and

Performance Policy, which required an employee to sign a Post-Decisional Leave Statement and a

PQIC Statement for a third Class I violation, and provided for termination of employment for

repeated Class I violations. J.A. at 275. Ultimately, Cecil cannot show that LWC’s proffered



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Cecil v. Louisville Water Co.

nondiscriminatory reasons had no basis in fact, were insufficient, or were anything but the product

of sound and honest business judgment.

       Further, Cecil is unable to create an issue of fact as to whether LWC’s actions were actually

motivated by her gender. As the district court concluded, the few inappropriate comments by Eiler

are too thin a basis on which to invalidate LWC’s nondiscriminatory reasons or to base a finding of

intentional discrimination. Because Cecil has presented insufficient evidence by which a reasonable

jury could conclude that the alleged adverse actions were actually motivated by discriminatory

animus as opposed to legitimate, nondiscriminatory reasons, we affirm the district court’s grant of

summary judgment in favor of LWC on Cecil’s disparate treatment claim.

C. Hostile Work Environment

       Title VII also prohibits conduct which is “sufficiently severe and pervasive to alter the

conditions of the victim’s employment and create an abusive working environment.” Meritor Sav.

Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986); see also Harris v. Forklift Sys., Inc., 510 U.S. 17, 21

(1993). To establish a prima facie case of hostile work environment, a plaintiff must prove that: 1)

she is a member of a protected class; 2) she was subjected to unwelcome harassment; 3) the

harassment was based upon her protected status; 4) the harassment unreasonably interfered with her

work performance by creating a hostile, offensive, or intimidating work environment; and 5) there

is a basis for employer liability. Thornton v. Fed. Express Corp., 530 F.3d 451, 455 (6th Cir. 2008).

       Cecil submits the following incidents contributed to a hostile work environment: 1) Eiler’s

negative comments, including the comments that she dressed too nicely, wanted to play in the dirt,



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Cecil v. Louisville Water Co.

and reminded him of Lisa Douglas; 2) Eiler’s denial of training and discriminatory assignment of

work; 3) Eiler’s humiliation of Cecil in meetings and when she asked for help; 4) LWC’s finding

of Eiler’s “perceived bias” against females and the OFCCP’s finding of a hostile work environment;

5) intimidation by male LWC employees; 6) Wehrle’s comment about Cecil being “easy”; 7) the

general “good old boy” culture at LWC; and 8) the stalking and harassing phone calls. Although

Cecil has established that she is a member of a protected class who was subjected to some

harassment, the parties disagree over whether she has shown that the harassment was based on her

sex and that it was sufficiently severe and pervasive.

       LWC first argues that the alleged incidents of harassment had nothing to do with Cecil being

a female, and instead were based on a personality conflict. Title VII protects any unequal treatment

that would not have occurred but for the employee’s sex, even if the conduct is non-sexual. Williams

v. Gen. Motors Corp., 187 F.3d 553, 565 (6th Cir. 1999). Here, a reasonable jury could find that at

least some of the harassment would not have occurred had Cecil been a male. The gender-specific

nature of Eiler’s comments on Cecil’s dress, her similarities to Lisa Douglas, and Wehrle’s comment

about Cecil being “easy” create an issue of fact as to whether Cecil’s gender was the motivating

factor for such conduct. See id. at 565-66. However, we will not consider the alleged incidents of

stalking and threatening phone calls, as Cecil only alleges they were in retaliation for her complaints

of discrimination—not because of her sex. See Morris v. Oldham County Fiscal Court, 201 F.3d

784, 790-91 (6th Cir. 2000) (refusing to include alleged retaliatory conduct in the hostile work

environment calculus because plaintiff did not suggest the conduct was committed “because of sex”).



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       Even if the harassment was based on Cecil’s sex, it still must be severe and pervasive to be

actionable. In evaluating the severity and pervasiveness of workplace harassment, we consider the

totality of the circumstances. See Williams, 187 F.3d at 562; see also Harris, 510 U.S. at 23.

Relevant circumstances include the “frequency of the discriminatory conduct; its severity; whether

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

interferes with an employee’s work performance.” Harris, 510 U.S. at 23. Viewed as a whole, the

environment must be both objectively and subjectively offensive, hostile, and abusive. Faragher

v. City of Boca Raton, 524 U.S. 775, 787 (1998). “[S]imple teasing, offhand comments, and isolated

incidents (unless extremely serious) will not amount to” a hostile work environment. Id. at 788.

Rather, “conduct must be extreme to amount to a change in the terms and conditions of

employment.” Id. We have consistently rejected any invitation to convert Title VII into a “code of

workplace civility.” Grace, 521 F.3d at 679.

       Viewing Cecil’s allegations as a whole, we agree with the district court that the incidents

were not so severe and pervasive that a reasonable person would find her work environment hostile

and abusive. The comments, while admittedly inappropriate, appear to have been isolated incidents

over the one-year period in which Eiler was Cecil’s process owner. See Morris, 201 F.3d at 790

(holding that several dirty jokes, a verbal sexual advance, a one-time reference to plaintiff as “Hot

Lips,” and comments about plaintiff’s state of dress were not sufficiently severe and pervasive).

Moreover, Cecil has not presented evidence indicating that any of the alleged incidents of harassment

interfered with her work performance. While Eiler’s presence on her floor after he was reassigned



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Cecil v. Louisville Water Co.

in 2002 may have been uncomfortable, Cecil testified that it did not impair her ability to do her job,

and LWC transferred him to a different location after a month. Cecil’s general, conclusory

allegations of “open mockery and verbal abuse” and “hostility” that was “pervasive” are also

insufficient to survive summary judgment. See Arendale v. City of Memphis, 519 F.3d 587, 605 (6th

Cir. 2008) (holding that plaintiff’s conclusory assertions of continuous “racial harassment” were

insufficient).

        Cecil attempts to bolster her hostile work environment claim with the OFCCP’s general

findings of a hostile work environment and the company’s own findings of Eiler’s “perceived bias”

against females. LWC contends that the OFCCP’s findings are inadmissible under Rule 803(8)(C)

because the sources of information and the circumstances of the investigation indicate a lack of

trustworthiness. Yet, even assuming the NORI is admissible as a public record, see Chandler v.

Roudebush, 425 U.S. 840, 863 n.39 (1976), it does not specifically address whether the environment

was hostile—both subjectively and objectively—for Cecil individually. And it specifically “defer[s]

any findings as to Ms. Cecil’s individual claims to the results of the U.S. District Court’s opinion.”

J.A. at 297. Further, the company’s own finding of a “‘perception’ of unacceptable biases” by Eiler,

creating “an adversarial environment especially among female employees,” J.A. at 254, indicates that

LWC may have acknowledged the subjective perceptions of some of its female employees, but it

does not admit that an objectively hostile, severe, and pervasive atmosphere existed for Cecil

individually. Even considering this evidence, Cecil has not satisfied her burden of showing a hostile

work environment, and summary judgment for LWC was therefore proper.



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Cecil v. Louisville Water Co.

D. Retaliation

       Under Title VII, it is an unlawful employment practice “for an employer to discriminate

against any of his employees . . . because he has opposed any practice made an unlawful employment

practice by this subchapter, or because he has made a charge, testified, assisted, or participated in

any manner in an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-

3(a). Cecil claims fourteen incidents of retaliation: 1) the negative comments on the green bar sheets

about Cecil and other female employees; 2) retaliation from project managers; 3) exclusion from

meetings and a plant tour; 4) removal of tank site duties; 5) discipline; 6) negative evaluations;

7) 1% salary increase; 8) Eiler remaining on her floor after being reassigned; 9) Heitzman’s “ripple

effect” comment; 10) Huber’s company-wide emails regarding Cecil’s lawsuit; 11) stalking; 12)

harassing and threatening phone calls; 13) relocation of Cecil’s desk near Eiler’s immediate

supervisor; and 14) discharge.

       In the absence of direct evidence, we review Cecil’s retaliation claims under the McDonnell

Douglas framework. Weigel v. Baptist Hosp., 302 F.3d 367, 381 (6th Cir. 2002). To establish a

prima facie case of retaliation, a plaintiff must show that: 1) she engaged in activity protected by

Title VII; 2) the employer knew of her exercise of protected rights; 3) the employer took a

materially adverse action against the plaintiff or subjected her to severe and pervasive retaliatory

harassment; and 4) there was a causal connection between the protected activity and the adverse

action. Abbott v. Crown Motor Co., Inc., 348 F.3d 537, 542 (6th Cir. 2003).




                                                - 17 -
No. 07-6232
Cecil v. Louisville Water Co.

       Many of the retaliatory acts Cecil alleges are insufficient to constitute materially adverse

actions. A materially adverse action in the retaliation context is not limited to those actions that

affect the terms and conditions of employment, or even acts that occur in the workplace; it is

sufficient to show that the action would have “dissuaded a reasonable worker from making or

supporting a charge of discrimination.” Burlington N. & Santa Fe. Ry. Co. v. White, 548 U.S. 53, 68

(2006). A materially adverse action does not include trivial harms, such as “petty slights or minor

annoyances that often take place at work and that all employees experience.” Id.

       The comments on the green bar sheets,8 Cecil’s exclusion from a meeting and a plant tour,

and the alleged uncooperativeness of Anthony Hewitt and the other project engineers strike us as

such “petty slights or minor annoyances.” So do Eiler’s presence on Cecil’s floor after his

reassignment, the relocation of Cecil’s desk, and Heitzman’s “ripple effect” comment. Further,

Huber’s emails simply informed LWC employees of the lawsuit and emphasized the company’s

commitment to diversity. Cecil has not presented enough evidence to show that these incidents were

so important as to dissuade a reasonable worker from making or supporting a charge of

discrimination. Nor has she shown that, even viewing them as a whole, she was subjected to severe

and pervasive retaliatory harassment.9 See Morris, 201 F.3d at 793 (finding retaliatory harassment


       8
         Aside from a hearsay statement by Patti Kaelin, Cecil Aff. ¶ 19, J.A. at 176, we note that
Cecil has failed to provide any further evidence of the contents of the comments on these green bar
sheets, let alone the originals, see Fed. R. Evid. 1002. Although she claims LWC destroyed the
originals and required its employees to sign new green bar sheets, Cecil Aff. ¶ 19, J.A. at 176, she
has failed to offer proof that the originals were actually destroyed.
       9
        Cecil’s allegations of threatening phone calls and stalking do not help her here, as she has
not submitted enough evidence—aside from her own suspicions—for a reasonable jury to conclude

                                               - 18 -
No. 07-6232
Cecil v. Louisville Water Co.

where plaintiff’s supervisor visited her department over fifteen times, called her over thirty times,

followed her home from work, and threw nails on her driveway). Finally, although “markedly lower

performance-evaluation scores that significantly impact an employee’s wages or professional

advancement” may be materially adverse actions, Halfacre v. Home Depot, U.S.A., Inc., 221 Fed.

Appx. 424, 433 (6th Cir. 2007), Cecil has not shown that her negative evaluation significantly

affected her salary or professional advancement.

       Even assuming that the removal of Cecil’s tank site duties, discipline, reduced salary

increase, and discharge amounted to materially adverse actions, Cecil must produce evidence of a

causal nexus between those actions and her protected activity. Temporal proximity is usually not

enough to show causation. Nguyen v. City of Cleveland, 229 F.3d 559, 566-67 (6th Cir. 2000);

Cooper v. City of N. Olmstead, 795 F.2d 1265, 1272 (6th Cir. 1986). “Where an adverse

employment action occurs very close in time after an employer learns of a protected activity,”

however, temporal proximity may be enough. Mickey v. Zeidler Tool & Die Co., 516 F.3d 516, 525

(6th Cir. 2008). But “where some time elapses between when the employer learns of a protected

activity and the subsequent adverse employment action, the employee must couple temporal

proximity with other evidence of retaliatory conduct to establish causality.” Id. In Mickey, the

plaintiff was found to have satisfied his burden of proving causation where his employer fired him

the very day it learned of his EEOC charge. Id. at 526.




that Eiler or any other LWC employee was the source of these incidents.

                                               - 19 -
No. 07-6232
Cecil v. Louisville Water Co.

       First, regardless of temporal proximity, Cecil explicitly acknowledged that the removal of

her tank site duties was not the result of her protected conduct. She testified that the duties were

removed after she disagreed with Patti Kaelin in a June 2004 meeting. Cecil Dep. 349-50, J.A. at

451-52. She said the reassignment was “[a]s a result of the [disagreement about the proposed]

language. I didn’t – I didn’t mean to imply the OFCCP. It just all happened right – just

coincidentally right around the same time.” Cecil Dep. 350, J.A. at 452.

       Further, we are not convinced that the temporal proximity between several of the remaining

actions and any of Cecil’s protected conduct is sufficient to give rise to an inference of causation.

LWC discharged Cecil in November 2005, approximately seventeen months after she complained

to the OFCCP in June 2004. Cecil received her reduced 1% salary increase ten months after her

OFCCP complaint. In contrast to the same-day firing of the employee in Mickey, these lengthy gaps

are insufficient, on their own, to create a reasonable inference of causation. See Giles v. Univ. of

Toledo, 286 Fed. Appx. 295, 305 (6th Cir. 2008) (holding seventeen-month period insufficient);

Evans v. Prospect Airport Servs., No. 07-5303, 2008 WL 2604312, at *7 (6th Cir. 2008) (holding

period of “almost a year” insufficient). It is a closer call, however, whether the one-month gap

between Cecil’s June 2004 OFCCP complaint and her two July 2004 code of conduct violations is

sufficient to show causation after Mickey. See Singfield v. Akron Metro. Hous. Auth., 389 F.3d 555,

563 (6th Cir. 2004) (holding three months sufficient); Goller v. Ohio Dept. of Rehab. & Corr., 285

Fed. Appx. 250, 257 (6th Cir. 2008) (holding two-month gap sufficient after Mickey). But see

Arendale, 519 F.3d at 606-07 (holding two-month gap insufficient). We need not make that call



                                               - 20 -
No. 07-6232
Cecil v. Louisville Water Co.

today, however, because even if Cecil’s is one of those few cases in which temporal proximity is

enough, LWC has offered legitimate, non-retaliatory reasons for its actions and Cecil is unable to

show that they are pretextual.

       Assuming without deciding, then, that Cecil has satisfied her burden of establishing a prima

facie case of retaliation, LWC has produced several legitimate business reasons for its actions.

Cecil’s work was outsourced and her tank site duties were ultimately removed due to a departmental

reorganization and to increase productivity. The company disciplined her because she was

chronically tardy, reduced her salary increase as a result of the discipline, and discharged her because

she refused to sign the PQIC Statement.

       And ultimately, as with her claims of disparate treatment, Cecil is unable to call into question

the factual basis or sufficiency of LWC’s proffered reasons, or LWC’s honest belief that Cecil was

chronically tardy and accordingly deserving of discipline, reduced salary, and discharge. The record

is replete with evidence of Cecil’s numerous tardiness violations and “the progressive disciplinary

steps that had been undertaken in an effort to correct such behavior.” Russell v. Univ. of Toledo, 537

F.3d 596, 609 (6th Cir. 2008). Cecil is also unable to present evidence that retaliation was the

company’s real motive. We conclude, therefore, that LWC was entitled to summary judgment on

Cecil’s retaliation claim.

                                                  III




                                                 - 21 -
No. 07-6232
Cecil v. Louisville Water Co.

       Because Cecil has failed to establish a genuine issue of material fact on her claims of

disparate treatment, hostile work environment, and retaliation, we AFFIRM the district court’s grant

of summary judgment in favor of LWC.




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