NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 08a0728n.06
                           Filed: November 24, 2008

                                            No. 07-6234

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


DEBRA L. VAUGHN,                                          )
                                                          )        ON APPEAL FROM THE
       Plaintiff-Appellant,                               )        UNITED STATES DISTRICT
                                                          )        COURT FOR THE WESTERN
v.                                                        )        DISTRICT OF KENTUCKY
                                                          )
LOUISVILLE WATER COMPANY; JOHN L.                         )        OPINION
HUBER, Louisville Water Company; GREGORY C.               )
HEITZMAN, Vice-President, Louisville Water                )
Company; ROBERT K. MILLER, Vice-President,                )
Louisville Water Company/Board of Water Works;            )
MICHAEL STURGEON, Human Resources,                        )
Louisville Water Company; RONALD D. EILER,                )
Louisville Water Company,                                 )
                                                          )
       Defendants-Appellees.                              )




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

       McKEAGUE, Circuit Judge. Plaintiff Debra Vaughn appeals the district court’s grant of

summary judgment in favor of her former employer, defendant Louisville Water Company (“LWC”),

on her claims of disparate treatment, hostile work environment, and retaliation under Title VII of the

Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq. For the reasons stated below, we

AFFIRM the decision of the district court.

                                                  I

A. Factual Background
No. 07-6234
Vaughn v. Louisville Water Co.

       In February 1992, LWC, a municipal water utility, hired Vaughn as a Right of Way

Administrator. She was responsible for acquiring easements and obtaining permits for LWC to

install water facilities. Because Vaughn’s position was “exempt,” she was not entitled to overtime.

       In 1996, LWC combined the Right of Way and Survey departments into one “process.” A

position was created for the supervisor, or “process owner,” of the new Survey and Easements

department. The position required the applicant to have a surveyor license. Although Vaughn

wanted to apply for the position, she did not have a surveyor license. Ron Eiler, the head of the

Survey department, applied for and received the position. He was the only employee to apply.

Vaughn alleges that the process owner job description included the surveyor license requirement

specifically to exclude her from applying for the position. She apparently told her supervisors, Jim

Asseff and Greg Heitzman, that she did not believe a surveyor license was necessary to perform the

job. According to Vaughn, the two female employees who were later hired into the same process

owner position did not possess a surveyor license.

       Nonetheless, Vaughn claims she was told not to worry about the process owner position.

Asseff and Heitzman apparently told her that her job responsibilities would not change. They also

apparently said that Eiler’s process owner position was not at a higher pay grade, nor was it a

promotion for Eiler. Vaughn admits that her job responsibilities did not change after Eiler became

process owner. She remained at a grade 9 pay level and retained the same job title. In February

2002, however, Vaughn claims she became concerned that she was doing the work of a process

owner without the title or salary.      She claims she expressed her concerns to Eiler, who



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condescendingly told her to “just keep doing things the way you are and everything will be just fine.”

Vaughn Aff. ¶ 29, J.A. at 169.

       In May 2002, Vaughn alleges she reviewed LWC’s employment records and discovered that

Eiler was being paid at a grade 10 pay level—one level higher than her. At that time, she also

claims she discovered that LWC paid overtime to some male employees in positions, such as hers,

that were exempt. She claims the male employees were either exempt and paid more than her, or

non-exempt and paid overtime.

       Vaughn also alleges that when she and Eiler interviewed applicants for available positions,

Eiler would only hire males. Specifically, in 1997, she claims Eiler told a female applicant that he

would not hire a female for a survey position. She also claims that Eiler hired white applicants over

African Americans. In 2001, Eiler apparently made a statement regarding the file of a property

owner whose last name was Bigot. Vaughn claims he said, “I’m a bigot, my wife’s a bigot too!”

Vaughn Aff. ¶ 23, J.A. at 168. According to Vaughn, she was offended and insulted by this

statement.

       After Eiler’s “bigot” comment, Vaughn alleges she complained to Jim Wehrle, LWC’s Vice

President of Human Resources. Eiler apparently accused her of “character assassination” and was

“irate” that she did not address her problems with him first. Vaughn Aff. ¶ 24, J.A. at 168. As a

result of her complaints, Vaughn participated in a series of meetings with Eiler. She claims these

meetings made Eiler angry and resentful toward her. In the first meeting, she alleges Eiler was

“stone faced” and “slammed his hands on the table” at her. Vaughn Aff. ¶ 26, J.A. at 168.



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Vaughn v. Louisville Water Co.

       Vaughn also alleges that a known “good old boy” atmosphere persisted at LWC. Vaughn

Aff. ¶ 69, J.A. at 179. According to Vaughn, females were treated as lower class employees and

were subjected to “open mockery and verbal abuse” by Eiler and other male employees. 

Eiler treated females in a “hostile, harassing way with an air of intimidation and

discrimination.” Vaughn Aff. ¶ 40, J.A. at 171. She also claims that Eiler frequently made negative,

hostile remarks to Diana Cecil, another LWC employee.1 She claims that in early 2002, Eiler began

monitoring his female employees more closely than the male employees. Vaughn also alleges that

Greg Heitzman, LWC’s Vice President, made disparaging remarks about Laura Douglas, LWC’s

corporate counsel, in meetings Vaughn attended. Vaughn claims Heitzman never made these types

of comments about male employees. She alleges that she was typically the only female who attended

these meetings, and that all of the other males would laugh in response to Heitzman’s comments.

       In May 2002, Vaughn discussed her concerns with Rhonda Plunkett, LWC’s Director of

Cultural Diversity. John Anderson, the Employee Relations Manager, subsequently began an

investigation into Eiler’s conduct. In June 2002, while the investigation was sill ongoing, Vaughn

claims she was leaving the office when Eiler walked out behind her, drove his car behind her car,

and “just sat there and stared [her] down.” Vaughn Aff. ¶ 47, J.A. at 173. In July 2002, at a

retirement party for one of the company’s secretaries, Vaughn claims Eiler spent the entire time

staring at Vaughn, Cecil, and another female employee “in a very intimidating manner.” Vaughn


       1
       Cecil also filed a lawsuit against LWC, alleging disparate treatment, hostile work
environment, and retaliation. See Cecil v. Louisville Water Co., No. 3:03CV-540-S, 

(W.D. Ky. Sept. 18, 2007). Cecil’s appeal from the district court’s grant of summary
judgment in favor of LWC is also before this court.

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Vaughn v. Louisville Water Co.

Aff. ¶ 50, J.A. at 174. After the party, Vaughn claims she met with Greg Heitzman to discuss her

concerns. Heitzman apparently indicated he would consider all options and “ultimately turn it over

to God.” Vaughn Aff. ¶ 51, J.A. at 174. At some point, Heitzman also apparently told Vaughn that

she would not be receiving or submitting her work directly through him anymore. Throughout

Anderson’s investigation of Eiler, Vaughn also claims the male employees turned against her and

the other female employees who had complained. She claims they “put up every road block

possible” and eliminated the females from contact with consultants, which made it difficult for them

to complete their work. Vaughn Aff. ¶ 52, J.A. at 174.

       On July 26, 2002, Vaughn’s doctor placed her on short term disability leave, as a result of

depression, anxiety, and stress.

       In early September 2002, Anderson completed his investigation of Eiler and cited him with

a code of conduct violation.2 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 240. A few days later, Eiler was removed from his position and later transferred

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

department.

       After being informed of Eiler’s transfer, and a few days before she was scheduled to return

to work, Vaughn claims she discussed her concerns about Eiler with her supervisor, Edwin Chestnut.

She apparently told Chestnut that she was afraid of Eiler and wanted to make sure that Eiler would


       2
       Section 1.1 of the LWC Employee Code of Conduct and Performance Policy provides that
employees shall “[m]aintain quality and performance standards.”

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Vaughn v. Louisville Water Co.

be relocated before she returned. Chestnut discussed Vaughn’s concerns with Heitzman, who

apparently indicated that Eiler would not be relocated unless Vaughn presented a doctor’s note.

Vaughn did obtain a doctor’s note extending her short term disability leave for a few days. She

returned to work on October 3, 2002. When she came to work that day, Vaughn claims Eiler “was

standing directly in front of my cubicle, forcing me to walk past him and very confrontational at a

time when almost no one was in the building.” Vaughn Aff. ¶ 55, J.A. at 176. Eiler remained in

the same work location as Vaughn until November 2002. Even after he relocated, Vaughn claims

Eiler periodically visited her floor for no apparent business purpose.

       After she returned to work, Vaughn claims her job title was changed in retaliation for her

complaints. She was designated as a “coordinator,” a non-management position, instead of an

“administrator,” a management position. As a result of her new title, Vaughn alleges that she was

ineligible for the company’s Leadership Institute training. Without such training, Vaughn claims she

was denied access to information about LWC’s operations, which prevented her from obtaining

promotions.

       In October 2002, Vaughn also claims she received a negative performance evaluation from

her new process owner, Cindy Kowalski.

       On December 12, 2002, Vaughn filed a charge with the Equal Employment Opportunity

Commission (“EEOC”), alleging sex discrimination and retaliation under Title VII.

       Vaughn again took short term disability leave on February 3, 2003. She was scheduled to

return to work in late April, but she claims she could not return to the adverse atmosphere. She was

again placed on short term disability leave until September 8, 2003. Vaughn did not return to work

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Vaughn v. Louisville Water Co.

on September 8, however. She claims she was physically incapable of returning because of the

problems that remained unaddressed at LWC.

       LWC discharged Vaughn on May 10, 2004. The company informed her that she had failed

to return to work in September 2003, had exhausted all of her leave options, and had offered no

medical documentation for her failure to return.

       Also on May 10, 2004, Vaughn filed a complaint of discrimination with the Department of

Labor, Office of Federal Contract Compliance Programs (“OFCCP”). The OFCCP notified LWC

of the complaint and began an investigation.

B. Procedural History

       After receiving a right to sue letter from the EEOC, Vaughn timely commenced this action

in the United States District Court for the Western District of Kentucky.3 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 Vaughn 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 Vaughn to supplement the record with the NORI, holding that it was


       3
          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).

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No. 07-6234
Vaughn v. Louisville Water Co.

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. Vaughn timely

appealed.

                                                  II

A. Standard of Review and Summary Judgment Standard

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

Corp., 

, 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., 

, 487 (6th Cir. 2006).

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

applicable law. 

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., 

, 587 (1986); Jones v. Potter, 

, 403 (6th Cir. 2007).

B. Statute of Limitations

       LWC first argues that any incidents of discrimination, hostile work environment, or

retaliation that occurred before February 15, 2002—300 days before Vaughn filed her EEOC

charge—are barred by Title VII’s statute of limitations. To recover under Title VII, a plaintiff must

first timely file a charge with the EEOC. Amini v. Oberlin Coll., 

, 498 (6th Cir. 2001).

Both parties agree that Vaughn had 300 days to file her EEOC charge. See 42 U.S.C. § 2000e-

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Vaughn v. Louisville Water Co.

5(e)(1) (providing that in a state or locality where an agency is authorized to grant or seek relief, an

individual must file a charge with that state or local agency, and must file any charge with the EEOC

300 days after the alleged unlawful employment practice occurred).

       “A discrete retaliatory or discriminatory act ‘occurred’ on the day that it ‘happened.’” Nat’l

R.R. Passenger Corp. v. Morgan, 

, 110 (2002). A pay-setting decision is a discrete act

and the period for filing an EEOC charge begins when the act occurs. Ledbetter v. Goodyear Tire

& Rubber Co., Inc., 

, 2165 (2007). Accordingly, Vaughn’s claims that she did not

receive the Survey and Easements process owner position in 1996, was paid less than Eiler as a result

of his promotion, and did not receive the same overtime pay as other exempt male employees, are

time-barred because they occurred more than 300 days before Vaughn filed her EEOC charge.

       Vaughn alleges that these claims are not barred because she did not discover the

discrimination regarding the promotion, pay, and overtime until June 2002, when she reviewed

employee job descriptions. The Supreme Court has “previously declined to address whether Title

VII suits are amenable to a discovery rule.” 

n.10. Even were we to agree that the

discovery rule should apply in Title VII cases, this would not be the case in which to announce it.4

Vaughn reasonably should have discovered any discrimination after she did not receive the position

in 1996. Although she claims she was told that Eiler had not received a promotion, it is simply

incomprehensible to believe that she had no idea Eiler had received a higher, supervisory

position—particularly given that she reported to him, see J.A. at 80-81, 290, 292-95. A diligent


       4
        Accordingly, we express no opinion today as to the applicability of the discovery rule in
Title VII cases.

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Vaughn v. Louisville Water Co.

employee would have discovered discrimination or a disparity in pay at that point. Because the

discovery rule would not save Vaughn’s untimely claims, the district court properly granted

summary judgment to LWC.5

C. Disparate Treatment

        Title VII of the Civil Rights Act of 1964 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). Aside from her untimely claims, Vaughn alleges that LWC discriminated against her

because of her sex when it altered her job title and, as a result, denied her Leadership Institute

training.6

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

v. City of Columbus Div. of Police, 

, 719 (6th Cir. 2006). Direct evidence is “evidence

that proves the existence of a fact without requiring any inferences.” 

evidence which, “if



        5
         Even if her claims are timely, Vaughn cannot make out a prima facie case of discrimination
based on LWC’s failure to promote her to the process owner position. To establish a prima facie case
of discrimination based on a failure to promote, a plaintiff must show that 1) she is a member of a
protected class; 2) she applied and was qualified for the promotion; 3) she was considered for and
denied the promotion; and 4) other employees of similar qualifications who were not members of
the protected class received promotions. Grizzell v. City of Columbus Div. of Police, 

,
719 (6th Cir. 2006). Vaughn neither was qualified nor applied for the position, and therefore cannot
make out a prima facie case. She has also failed to present any evidence that the requirements of the
position were drafted in a discriminatory way so as to prevent her from applying.
        6
         Vaughn also argued before the district court that her work was outsourced and that she did
not receive the position of Business System Owner of Supplying Customer Service in 2001. Because
she has not challenged either of these actions on appeal, we decline to address them.

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Vaughn v. Louisville Water Co.

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., 

(6th

Cir. 1999). Vaughn argues that the evidence of Eiler’s specific bias against females, the company’s

own reference to such a “perceived bias,” and the OFCCP’s findings 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 240; it does not concede that an objectively discriminatory environment actually

existed for Vaughn individually. And although the NORI may acknowledge a discriminatory

environment at LWC generally, its findings do not specifically refer to Vaughn and it defers any

individual findings to the federal court. J.A. at 297. Because this evidence does not require us to

conclude that Vaughn 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, 

(1973). Vincent v. Brewer

Co., 

, 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 

. To establish a prima facie case of disparate treatment, a

plaintiff must show that 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



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outside the protected class, or treated differently than similarly situated non-protected employees.

.

        Vaughn has failed to establish that the change in her job title from administrator to

coordinator in 2002, and her resulting inability to attend Leadership Institute training, resulted in any

adverse employment action. An adverse employment action is “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.” Baxter Healthcare 

(quoting Burlington Indus. v. Ellerth, 

, 761 (1998)). It must be “more

disruptive than a mere inconvenience or alteration of job responsibilities.” Michael v. Caterpillar

Fin. Servs. Corp., 

, 594 (6th Cir. 2007). Here, the terms and conditions of Vaughn’s

employment did not change after the change in her job title. She admitted that her duties, salary, and

benefits remained the same. Vaughn Dep. 194-95, J.A. at 522. And although “a deprivation of

increased compensation as the result of a failure to train constitutes an adverse employment action,”

Clay v. United Parcel Serv., Inc., 

, 710 (6th Cir. 2007), Vaughn has failed to present

any evidence that she was passed up for promotions because of her inability to attend the Leadership

Institute training. She only alleges that the training “would have . . . allow[ed] me to be able to be

promoted to another position . . . when and if something else opened up.” Vaughn Dep. 192, J.A.

at 521. But her own conclusory assertions as to the value of the training and her inability to receive

promotions are insufficient to survive summary judgment. See Arendale v. City of Memphis, 

, 605 (6th Cir. 2008).



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       Even were we to assume, for the sake of argument, that Vaughn has established a prima facie

case, LWC has nonetheless offered legitimate, nondiscriminatory reasons for its actions. The

employer need only articulate a nondiscriminatory rationale; it need not prove it. Hartsel v. Keys,

, 800 (6th Cir. 1996). Here, LWC contends that Vaughn’s new job title was simply a

re-tooling of job descriptions based on a change in management.

       Further, Vaughn cannot demonstrate that LWC’s legitimate reasons for its actions were in

fact only a pretext for intentional discrimination. To do so, the plaintiff must show that the

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

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

Tech. Servs., LLC, 

, 677 (6th Cir. 2008); Cicero v. Borg-Warner Auto., Inc., 

, 589 (6th Cir. 2002). Vaughn does not address the issue of pretext on appeal. She has not

offered any proof that LWC’s reason lacks a factual basis, was insufficient to motivate its actions,

or was anything but the product of sound and honest business judgment. She has also failed to offer

evidence that LWC’s actions had anything to do with her gender. Ultimately, her theory of gender

discrimination is based solely on her unsupported speculations of an anti-female bias at LWC. That

is not enough to establish pretext or to survive summary judgment. See Sutherland v. Mich. Dep’t

of Treasury, 

, 623 (6th Cir. 2003). Accordingly, we affirm the grant of summary

judgment in favor of LWC with respect to Vaughn’s disparate treatment claim.

D. 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.

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Bank, FSB v. Vinson, 

, 67 (1986); see also Harris v. Forklift Sys., Inc., 

, 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., 

, 455 (6th Cir. 2008).

       LWC first argues that any alleged harassment had nothing to do with Vaughn’s sex. 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., 

, 565 (6th Cir. 1999).

Here, however, many of the incidents Vaughn seeks to include in her hostile environment claim

occurred after she reported Eiler for his “bigot” comment. For example, she claims that Eiler “stared

her down” in the parking lot and at the retirement party specifically because of her complaints of

discrimination. This suggests that—if anything—much of Eiler’s conduct was retaliatory, not

gender-based. See Morris v. Oldham County Fiscal Court, 

, 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”).

       Even if some the alleged harassment was based on Vaughn’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 

; see also 

. Relevant circumstances include the “frequency of the discriminatory conduct; its

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

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whether it unreasonably interferes with an employee’s work performance.” 

.

Viewed as a whole, the environment must be both objectively and subjectively offensive, hostile,

and abusive. Faragher v. City of Boca Raton, 

, 787 (1998). “[S]imple teasing, offhand

comments, and isolated incidents (unless extremely serious) will not amount to” a hostile work

environment. 

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

conditions of employment.” 

consistently rejected any invitation to convert Title VII

into a “code of workplace civility.” 

.

       Viewing Vaughn’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. Eiler’s actions and comments appear to have been isolated incidents that occurred over

a period of ten years. See 

(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, Vaughn has not presented evidence

indicating that any of the alleged incidents of harassment interfered with her work performance.

While Eiler’s presence on Vaughn’s floor after he was reassigned in 2002 may have been

uncomfortable, he was relocated within a reasonable time. Vaughn even testified that during that

time she was not prevented from performing her job duties. Finally, Vaughn’s general allegations

of “open mockery and verbal abuse” and the “hostile” and “harassing” environment that was

“pervasive” are not enough to survive summary judgment. See 

(holding

that plaintiff’s conclusory assertions of continuous “racial harassment” were insufficient).



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       Vaughn 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, 

, 863 n.39 (1976), it does not specifically address whether the environment

was hostile—both subjectively and objectively—for Vaughn individually. And it specifically

“defer[s] any findings as to Ms. Vaughn’s individual claims to the results of the U.S. District Court’s

opinion.” J.A. at 298. 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

240-41, 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 Vaughn individually. Even considering this evidence, Vaughn has not satisfied her burden of

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

E. 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). Vaughn claims eight incidents of retaliation: 1) denying her a promotion to process owner after

Eiler was reassigned; 2) changing her job title; 3) terminating her health benefits under the

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Consolidated Omnibus Budget Reconciliation Act (“COBRA”) in May 2004;7 4) Eiler’s actions in

the parking lot and other intimidating behavior; 5) the overall threatening work environment; 6) the

negative evaluation in October 2002; 7) Huber’s company-wide emails regarding Vaughn’s lawsuit

in September 2003; and 8) her May 2004 discharge.

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

McDonnell Douglas framework. Weigel v. Baptist Hosp., 

, 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., 

, 542 (6th Cir. 2003).

       Many of the retaliatory acts Vaughn 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, 

, 68




       7
        The district court refused to consider Vaughn’s claim regarding her COBRA benefits
because she raised it for the first time in her response to LWC’s motion for summary judgment.
Although that likely amounted to a waiver of the argument and a failure to preserve it for appeal, see
Scottsdale Ins. Co. v. Flowers, 

, 553 (6th Cir. 2008), Vaughn’s claim of retaliation
based on the denial of benefits fails on the merits as well.

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No. 07-6234
Vaughn v. Louisville Water Co.

(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.” 

argues that it was retaliatory for the company to deny her a promotion to process

owner after Eiler was reassigned in October 2002. She claims she was never considered for this

position, but there is no evidence that she applied for it. Not receiving a promotion for which one

did not apply would not dissuade a reasonable worker from engaging in protected conduct, and

accordingly does not constitute a materially adverse action.

       Several of Vaughn’s other allegedly retaliatory acts do not rise to the level of a materially

adverse action. “[M]arkedly 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); see also James v. Metro. Gov.

of Nashville, 243 Fed. Appx. 74, 79 (6th Cir. 2007). But Vaughn has not shown that the negative

performance evaluation she received in October 2002 significantly affected her salary or professional

advancement. Further, Huber’s company-wide emails simply informed LWC employees of the

lawsuit and emphasized the company’s commitment to diversity; they would not have dissuaded a

reasonable worker from filing a charge. Eiler’s presence on Vaughn’s floor for one month may have

been uncomfortable, but he was eventually relocated. And the few times he expressed his anger to

Vaughn were isolated incidents. Vaughn 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. See 

(finding retaliatory

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Vaughn v. Louisville Water Co.

harassment 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).

          Even if she can show that the change in her job title, denial of COBRA benefits, and

discharge resulted in materially adverse actions, Vaughn 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, 

, 566-67 (6th Cir. 2000); Cooper v. City of N.

Olmstead, 

, 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., 

, 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.” 

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. 

          We are not convinced that the temporal proximity between several of the allegedly adverse

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

Vaughn received a letter regarding the termination of her COBRA benefits on May 3, 2004, seven

days before she filed the OFCCP complaint. J.A. at 249. She was also discharged before she filed

the OFCCP complaint, because she referred to her discharge in the complaint itself. J.A. at 231. In

addition, the discharge and denial of benefits occurred approximately one and a half years after

Vaughn filed her EEOC charge and approximately eight months after she filed suit in federal court.

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Vaughn v. Louisville Water Co.

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 Hamilton v. Starcom Mediavest Group,

Inc., 

, 629-30 (6th Cir. 2008) (holding that a nine-month gap, standing alone, is

insufficient). Vaughn’s job title was changed after she returned to work in October 2002,

approximately four months after she had complained to LWC management. It is a closer call

whether this four-month gap is sufficient to show causation after Mickey. See 

(holding four months insufficient prior to Mickey); Goller v. Ohio Dept. of Rehab. & Corr., 285

Fed. Appx. 250, 257 (6th Cir. 2008) (holding two-month gap sufficient after Mickey). We need not

make that call today, however, because even if Vaughn’s is one of those few cases in which temporal

proximity is enough, LWC has offered legitimate, non-retaliatory reasons for its actions and Vaughn

is unable to show that they are pretextual.

       Assuming without deciding, then, that Vaughn has established a prima facie case of

retaliation, LWC has produced legitimate business reasons for its actions. LWC claims the change

in Vaughn’s job title was simply a re-tooling of job descriptions based on a change in management.

The company discharged her because she did not return to work after she exhausted all of her

medical leave and vacation time. Finally, it terminated her COBRA benefits because she stopped

sending her premium payments to LWC.

       And ultimately, as with her claims of disparate treatment, Vaughn cannot disprove LWC’s

proffered reasons or present evidence that they were insufficient to motivate the company’s actions.

“[A]s long as an employer has an honest belief in its proffered nondiscriminatory reason” for taking

an adverse employment action, “the employee cannot establish that the reason is pretextual simply

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Vaughn v. Louisville Water Co.

because it is ultimately shown to be incorrect.” Majewski v. Automatic Data Processing, Inc., 

, 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.’”

Caterpillar Fin. Servs. 

(quoting 

). 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.” 

(quoting Smith v.

Chrysler Corp., 

, 807 (6th Cir. 1998)).

       Here, Vaughn has failed to submit evidence showing that the allegedly retaliatory actions

were anything but legitimate and honest business decisions. As to the denial of COBRA benefits,

Vaughn admitted that “I cannot prove that my checks were sent and received (and should have sent

them with return receipt coverage).” J.A. at 250. Regarding her discharge, Vaughn claims LWC did

not notify her that she would be discharged if she did not return to work in September 2003. But she

admits she knew she was expected to return to work on that date. Whether, as she argued, she could

physically return to work is irrelevant. Based on all of the facts before LWC, the company had a

reasonable basis and an honestly held belief that Vaughn’s absence from work was grounds for

discharge.

       Moreover, Vaughn has failed to present evidence—aside from unsupported, conclusory

assertions—indicating that retaliation was the true reason for LWC’s actions. We conclude,

therefore, that LWC was entitled to summary judgment on Vaughn’s retaliation claim.

                                                 III



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Vaughn v. Louisville Water Co.

       Because Vaughn 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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