United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 4, 2005 Decided May 24, 2005

No. 04-7063

LINDA ROEBUCK,

APPELLANT

v.

ODIE WASHINGTON, DIRECTOR, D.C. DEPARTMENT OF

CORRECTIONS, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 99cv01564)

Linda M. Correia argued the cause for appellant. With

her on the briefs were Susan L. Brackshaw and Jonathan C.

Puth.

David A. Hyden, Assistant Attorney General, Office of

Attorney General for the District of Columbia, argued the cause

for appellee. With him on the brief were Robert J. Spagnoletti,

Attorney General, and Edward E. Schwab, Deputy Attorney

General.

Before: GINSBURG, Chief Judge, and HENDERSON and

RANDOLPH, Circuit Judges.
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Opinion for the Court filed by Chief Judge GINSBURG.

GINSBURG, Chief Judge: Linda Roebuck sued her

employer, the District of Columbia Department of Corrections,

under Title VII of the Civil Rights Act of 1964, and her

supervisor, Larry Corbett, under 42 U.S.C. § 1983, alleging

Corbett had sexually harassed her. The jury found Corbett but

not the Department liable. The Department prevailed by

proving (1) it had “exercised reasonable care to prevent and

correct promptly any sexually harassing behavior,” and (2)

“Roebuck [had] unreasonably failed to take advantage of ...

preventive or corrective opportunities provided by the

[Department],” Special Verdict at 2; those findings made out an

affirmative defense pursuant to Faragher v. City of Boca Raton,

524 U.S. 775 (1998), and Burlington Industries, Inc. v. Ellerth,

524 U.S. 742 (1998). 

Roebuck appeals, arguing principally that the

Department had taken a “tangible employment action” against

her and thereby forfeited the Faragher-Ellerth affirmative

defense. Alternatively, Roebuck argues first that the district

court’s instruction on the affirmative defense misled the jury

about the Department’s burden to prove she acted unreasonably

in failing to complain earlier and, second, that the Department

did not produce evidence sufficient to carry its burden. We

affirm the judgment of the district court. 

I. Background

Linda Roebuck began working for the D.C. Department

of Corrections in 1986. In 1993 she was assigned to work as an

administrative assistant in the Office of the Major at the D.C.

Jail. In 1995 Larry Corbett was promoted to the position of

Major, making him Roebuck’s direct supervisor; soon thereafter,

Corbett began sexually harassing her “off and on.” In August
3

1997 Corbett was promoted to Deputy Warden, and later that

same month he asked Roebuck to transfer to the Office of the

Warden and continue serving as his administrative assistant.

Roebuck agreed but when she resumed working for Corbett in

September, he resumed harassing her. 

In October Corbett asked Roebuck out to dinner and,

when she refused, he began to question her about her previous

relationship with his brother. In November Corbett’s father died

and Roebuck reluctantly agreed to have dinner with Corbett in

order to console him, but she brought her son along to avoid

being alone with Corbett. After dinner they returned to

Roebuck’s residence, where Corbett invited himself in and

remained for over an hour. When Roebuck finally told Corbett

to “go home to your wife” and showed him to the door, Corbett

unexpectedly grasped Roebuck and tried to kiss her. Roebuck

refused, saying, “I told you no, I don’t date married men.”

Corbett left, but the next day at work, he expressed his

displeasure by sticking his tongue out at Roebuck.

In mid-December Corbett showed up unannounced at

Roebuck’s house and asked her to accompany him on an

overnight shopping trip to Williamsburg, which invitation

Roebuck declined. Sometime before Christmas, Corbett again

stopped by Roebuck’s house, but Roebuck’s son, per her

instructions, told Corbett she was asleep. 

On Christmas Day Corbett summoned Roebuck to his

office and again grabbed her and tried to kiss her. Lieutenant

James Clark, who witnessed Corbett’s unwanted groping,

reported the incident to the Warden that same day. A couple

days later, Corbett left a note reading “Sexy” on top of

Roebuck’s work assignments. When Roebuck asked Corbett

about the meaning of the note, Corbett responded, “You,

Roebuck,” making the shape of an hourglass with his hands. 
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The next day Corbett warned Roebuck: “Don’t let me find out

you’re taking sides with Lieutenant Clark.” 

Sometime in January 1998 Corbett told Roebuck she

should wear her hair up “because [she] was sexier” that way,

and that she should wear pants instead of skirts because her legs

were distracting. On January 16 Corbett called Roebuck into his

office with what Roebuck characterized as “bedroom music”

playing and simply stared at her, saying nothing; when Roebuck

asked, “Well, what do you want,” Corbett just kept staring.

Roebuck eventually left, disgusted, but Corbett immediately

called her back to his desk and repeated the silent-staring

routine. That was apparently the last straw as far as Roebuck

was concerned; on January 21 she complained to Lieutenant

Clark of sexual harassment by Corbett. 

The next day Roebuck discovered the lock on Corbett’s

office door had been changed. Another administrative assistant,

Violet Hicks, had a key to the new lock, and she let Roebuck

into the office to retrieve her assignments. 

On February 6 the Warden of the D.C. Jail, Mario

Randall, met with Corbett to discuss Roebuck’s complaint.

Thereafter Randall sent a memorandum up the departmental

chain of command recommending that Roebuck be reassigned

to the “relief pool,” which was by all indications not a desirable

transfer. Before Roebuck was ever apprised of the proposed

transfer, however, Randall changed his mind, concluding “the

action to move her back to the correctional force ... gave the

appearance of being retaliatory.” On February 10 he instead

informed Roebuck she would be switching duties with Violet

Hicks. Roebuck said she did not want to make the switch. 

The change in her duties never took place because

Roebuck went on sick leave for six weeks, during which time
5

she sought psychological counseling for the stress and anxiety

Corbett had caused her. In the meantime Corbett was demoted

and transferred to another facility. When Roebuck returned she

resumed her old job with a new boss, and her sick leave was

restored. 

Roebuck later sued both Corbett and the Department.

The district court concluded the Department had not taken any

“tangible employment action” against Roebuck and therefore

could present the affirmative defense to vicarious liability

established in Faragher and Ellerth. The case was tried to a

jury, which found Corbett individually liable, pursuant to 42

U.S.C. § 1983, and awarded damages against him in the amount

of $5,000. In a special verdict, the jury also found the

Department had made out the Faragher-Ellerth affirmative

defense. Special Verdict at 2. Roebuck moved for judgment as

a matter of law, which the district court denied. 

II. Analysis

On appeal Roebuck contends the district court erred in

allowing the Department to defend on the ground it had taken no

“tangible employment action” against her. In the alternative,

Roebuck argues that the district court’s instruction to the jury

was misleading and contrary to law with respect to the

affirmative defense. Finally, Roebuck contends the Department

failed to produce legally sufficient evidence to support the jury’s

finding that Roebuck acted unreasonably in failing earlier to

report Corbett’s sexual harassment.

A. Tangible Employment Action

The Supreme Court held in Faragher that “when the

supervisor’s harassment culminates in a tangible employment
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action” against the plaintiff employee, the employer is

vicariously liable for the harassment. 524 U.S. at 808. In

Ellerth, decided the same day, the Court elaborated: “A tangible

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.” 524 U.S. at

761. Roebuck argues the Department took three tangible

employment actions against her, namely, (1) Corbett changing

the locks on his office door; (2) Warden Randall writing and

sending up the chain of command a memorandum requesting

Roebuck’s transfer to the relief pool; and (3) Randall telling

Roebuck she would be swapping duties with Violet Hicks. 

The district court held, and the Department contends,

that Corbett’s changing the locks does not amount to a tangible

employment action. The only consequence identified by

Roebuck was that on one occasion she had to ask Ms. Hicks to

open the door to Corbett’s office so she could get her work

assignments. Even if Roebuck had to get someone to let her in

every day from January 22 through February 10 -- upon which

the record is silent -- she still fails to make out a tangible

employment action because, as the district court stated, she did

“not provide [any] evidence that changing the locks in fact

interfered with [her] ability to perform her job.” 

Roebuck argues the district court “incorrectly focused on

whether [her] compensation was affected or whether she

sufficiently proved the degree of impact that such an action had

on her ability to perform her job.” According to Roebuck “[t]he

focus of the Faragher/Ellerth standard of vicarious liability is

on the fact of the official action, not on the degree of the impact”

it had. 

Roebuck’s asserted “focus” is far different from that of
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the Supreme Court. Indeed, in defining “tangible employment

action,” the Court could hardly have been more clear that it is

not “the fact of the official action,” as Roebuck would have it,

but its effect upon the plaintiff that matters. See Ellerth, 524

U.S. at 761 (tangible employment action entails “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”). Because Roebuck points to no effect, let alone a

significant effect, that Corbett’s changing the locks had upon her

employment status, her work, or her benefits, we conclude it

was not a tangible employment action. 

Roebuck next argues that Warden Randall’s proposal to

transfer her to the relief pool, which he sent up the departmental

chain of command, was a tangible employment action. Randall

testified that he changed his mind about the transfer and, as

Roebuck concedes, the transfer never took place; indeed,

Roebuck did not even know about the possibility of being

transferred when she left work on sick leave. The proposal

therefore had no effect upon Roebuck’s employment status, her

work, or her benefits. The district court aptly put the matter in

context: “the internal machinations of [the Department] are

insufficient to constitute a tangible employment action where no

aspect of plaintiff’s actual employment was altered as a result.”

Finally, Roebuck contends the Department took a

tangible employment action against her when Warden Randall

informed Roebuck she would be switching duties with Violet

Hicks. Again as Roebuck acknowledges, in the event her duties

never were changed. Even if the transfer were deemed effective

when the Warden informed Roebuck of it -- a point upon which

we express no opinion -- swapping duties with Violet Hicks,

another administrative assistant in the Office of the Warden,

would hardly have worked a “significant” change in Roebuck’s
8

* The court in Brown assumed, see id. at 456-57, and we have

no reason in this case to doubt, that a “materially adverse action” in a

case alleging a discrete act of discrimination, and a “tangible

employment action” in a case such as this, alleging a hostile work

environment, are one and the same.

employment. The only difference seems to be that Hicks

reported to Warden Randall whereas Roebuck reported to

Deputy Warden Corbett. As this court explained in Brown v.

Brody, 

A plaintiff who is made to undertake ... a lateral transfer

-- that is, one in which she suffers no diminution in pay

or benefits -- does not suffer an actionable injury unless

there are some other materially adverse consequences

affecting the terms, conditions, or privileges of her

employment or her future employment opportunities.

199 F.3d 446, 457 (1999).* Although Roebuck did not want to

swap duties with Ms. Hicks, she never identified any way in

which the change would have made her worse off; as the court

made clear in Brown, “[m]ere idiosyncracies of personal

preference are not sufficient.” 199 F.3d at 457.

Robinson v. Sappington, 351 F.3d 317 (7th Cir. 2003),

upon which Roebuck relies, is not to the contrary. The plaintiff

in that case was a secretary for a judge who, she alleged, was

sexually harassing her. When the plaintiff complained to the

Chief Judge of the district, he proposed to reassign her to a like

position with another judge, at the same time advising her the

other judge was not at all happy about the transfer, and “her first

six months [in the new post] probably would be [such] ‘hell’”

that it would be in her “best interest to resign.” 351 F.3d at 324.

Thus, although the plaintiff was ostensibly offered a lateral

transfer, the change in that case, unlike the proposed swap of
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Roebuck’s and Hicks’ duties, entailed “materially adverse

consequences affecting the terms, conditions, or privileges of

her employment,” Brown v. Brody, 199 F.3d at 457; it was

therefore a “tangible employment action.” 

B. The Instruction to the Jury

Roebuck argues the district court erred in instructing the

jury with regard to the second element of the Faragher-Ellerth

affirmative defense, to wit, the employer’s burden of proving

“the plaintiff employee unreasonably failed to take advantage of

any preventive or corrective opportunities provided by the

employer or to avoid harm otherwise.” Ellerth, 524 U.S. at 765.

As the Supreme Court explained, 

[W]hile proof that an employee failed to fulfill the

corresponding obligation of reasonable care to avoid

harm is not limited to showing any unreasonable failure

to use any complaint procedure provided by the

employer, a demonstration of such failure will normally

suffice to satisfy the employer’s burden under the second

element of the defense.

Id. In this case, the district court instructed the jury as follows:

You must find for the defendant District of

Columbia if you find defendant has proved by a

preponderance of the evidence first that defendant

District of Columbia exercised reasonable care to

prevent and correct promptly any sexually harassing

behavior; and second, that Roebuck unreasonably failed

to take advantage of any preventive or corrective

opportunities provided by the District of Columbia to

avoid harm.
10

...

[P]roof that plaintiff Roebuck did not follow a

complaint procedure provided by defendant District of

Columbia as employer will ordinarily be enough to

establish that plaintiff Roebuck unreasonably failed to

take advantage of a corrective opportunity.

Roebuck argues the district court erred when it instructed

the jury that the Department could meet its burden with “proof

that plaintiff Roebuck did not follow a complaint procedure

provided by defendant.” The Department had not argued that

Roebuck failed to follow its complaint procedure. On the

contrary, there was no dispute that on January 21, 1998 Roebuck

filed with Lieutenant Clark a complaint against Corbett for

sexual harassment. The only issue before the jury was that of

timeliness -- or as Roebuck, quoting Greene v. Dalton, 164 F.3d

671, 675 (D.C. Cir. 1999), succinctly states, “whether ‘a

reasonable person in [her] place’ would have complained

earlier.” 

The court twice instructed the jury, correctly, that the

Department had to prove “Roebuck unreasonably failed to take

advantage of any preventive or corrective opportunit[y].” The

only “unreasonable failure” at issue was Roebuck’s failure to

complain earlier. The court’s further instruction about “proof

that plaintiff Roebuck did not follow a complaint procedure

provided by defendant” was therefore surplusage; it would better

have been omitted, but we see no reason to think the jury could

have been confused by the instruction and somehow concluded

that Roebuck never complained at all. 

C. Sufficiency of the Evidence

Lastly, Roebuck challenges the sufficiency of the
11

evidence that she unreasonably delayed complaining to her

employer. She faces an uphill battle, for this court must affirm

if there was evidence in the record from which a jury reasonably

could infer that Roebuck failed to exercise due care to avoid the

harassment of which she complained. See Sparshott v. Feld

Entertainment Inc., 311 F.3d 425, 429 (D.C. Cir. 2002). 

Recall that Corbett resumed harassing her in October

1997, yet Roebuck did not complain until late January 1998.

Roebuck argues here, as she did before the jury, that she delayed

in reporting Corbett’s sexual harassment in part because she was

afraid of reprisal and in part because she was unsure whether the

harassment that occurred outside the workplace was covered by

the Department’s anti-harassment policy. Whether fear and

uncertainty made Roebuck’s delay in complaining reasonable

was for the jury to decide. 

As the Department points out, “[t]he jury heard

testimony that [Roebuck] had filed as many as ten sexual

harassment complaints between 1986 and 1995.” Surely that

could have led a reasonable jury to discount Roebuck’s

explanation for delaying. 

Upon this record, a reasonable jury certainly could have

found in Roebuck’s favor, but we cannot say the same jury

could not find that Roebuck unreasonably delayed in reporting

Corbett’s harassment. Therefore Roebuck’s challenge to the

sufficiency of the evidence fails. 

III. Conclusion

We conclude Roebuck did not suffer a tangible

employment action, and the district court did not err materially

in instructing the jury concerning her duty of reasonable care.

Because the Department put on sufficient evidence for a
12

reasonable juror to infer that Roebuck in fact failed to exercise

due care in avoiding the harm she sustained, the judgment of the

district court is

Affirmed.