United States Court of Appeals 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 25, 2014 Decided July 24, 2015 

No. 13-5170 

JANET E. ALLEN, 

APPELLANT

v. 

JEH CHARLES JOHNSON, SECRETARY OF HOMELAND SECURITY, 

APPELLEE

Appeal from the United States District Court 

for the District of Columbia 

(No. 1:09-cv-02228) 

Ellen K. Renaud argued the cause for appellant. With her 

on the briefs was David H. Shapiro. 

Jeremy S. Simon, Assistant U.S. Attorney, argued the 

cause for appellee. With him on the brief were Ronald C. 

Machen Jr., U.S. Attorney, and R. Craig Lawrence, Assistant 

U.S. Attorney. 

Before: ROGERS, KAVANAUGH and PILLARD, Circuit 

Judges. 

Opinion for the Court filed by Circuit Judge PILLARD. 
2 

PILLARD, Circuit Judge: Plaintiff Janet Allen settled a 

pair of employment discrimination claims against the 

Department of Homeland Security, but soon began to suspect 

that her new supervisor, Kathy Hill, was retaliating against 

her for having asserted her rights. Allen’s next performance 

rating was lower than she thought it should be, and she was 

not invited to meetings in which she thought she should be 

included as part of her job overseeing the internal financial 

control systems at U.S. Immigration and Customs 

Enforcement (ICE), an agency within the Department of 

Homeland Security. Allen filed this suit claiming Hill 

retaliated against her for the earlier discrimination complaints. 

The Department moved for summary judgment, asserting that 

Hill’s explanations of her actions were legitimate and nonretaliatory. Hill justified the performance ratings on the 

ground that Allen, a managerial employee, failed adequately 

to supervise ICE’s specialized satellite offices and external 

contractors, leading to delays on two projects and a complaint 

from one of the satellite offices. Hill also attested that Allen 

was never excluded from meetings at which her presence was 

required and that, if Allen had thought otherwise, she could 

have asked to attend meetings, but never did. Allen claimed 

that her own disagreement with Hill’s assessment of her 

performance and with Hill’s decisions about who to include in 

meetings created triable issues precluding summary judgment. 

Because we conclude that the proffered facts could not, if 

presented at trial, support a jury verdict that retaliation was 

Hill’s real motive for the actions of which Allen complains, 

we affirm the district court’s grant of summary judgment in 

favor of the Department. 

I. BACKGROUND 

Relevant background to the current retaliation case began 

over a decade ago, when Allen worked as a Director of 
3 

Financial Management at ICE, overseeing financial systems 

there and at five other bureaus within the Department of 

Homeland Security. Allen v. Napolitano (“Allen I”), 774 F. 

Supp. 2d 186, 191 (D.D.C. 2011). In 2006, Allen filed an 

EEO complaint alleging a hostile work environment, 

discrimination on the basis of sex, age, and disability, and 

retaliation. Id. at 191-92. After Allen filed her first 

complaint, ICE reassigned her from that position to a posting 

as Director of Internal Controls in ICE’s Office of Assurance 

and Compliance (OAC). See id. at 192. OAC evaluates and 

develops plans to improve ICE’s internal financial controls 

and reports the results of internal control testing and other 

audit activities within the Department. Allen’s job at OAC 

was to supervise certain financial controls tests and functions, 

including by managing contracts with outside accounting 

firms. Allen v. Napolitano (“Allen II”), 943 F. Supp. 2d 40, 

43-44 (D.D.C. 2013). Allen filed a second EEO complaint in 

2007 alleging that her reassignment to OAC was retaliatory. 

See Allen I, 774 F. Supp. 2d at 192. 

In February 2008, the Department entered into a 

settlement agreement with Allen resolving her 2006 and 2007 

complaints. Id. The settlement obligated ICE to give Allen a 

step promotion, provide her back pay, attorneys’ fees and 

costs, and, based on a list of Allen’s accomplishments, change 

her performance reviews for 2005–2007 to award her the 

highest performance rating. Id. Kathy Hill, Allen’s new 

supervisor following her reassignment to OAC, held the 

position of Acting Director of OAC. The Department charged 

Hill with implementing the performance rating adjustments 

under the settlement agreement. 

In this suit, Allen alleges that Hill and others retaliated 

against her in violation of Title VII of the Civil Rights Act of 

1964 (codified as amended at 42 U.S.C. § 2000e et seq.), by 
4 

giving her an unfavorable performance review in 2008 (the 

fiscal year after the three covered by the settlement), and 

excluding her from important meetings to which Allen alleges 

she should have been invited.1 

The district court granted summary judgment to the 

Department. The Department supported its motion by 

showing that the unfavorable performance ratings were based 

on Hill’s determination that Allen failed adequately to oversee 

contractors and agency satellite offices whose compliance she 

supervised, missed deadlines for two projects, and that Hill 

did not exclude Allen from any meetings at which Hill 

understood her presence to be warranted. Allen argued that 

each of the Department’s reasons was “unworthy of 

credence,” see Jones v. Bernanke, 557 F.3d 670, 678 (D.C. 

Cir. 2009) (internal quotation marks omitted), and was put 

forward as a pretext for intentional retaliation. She disagreed 

with Hill’s assessment of her performance on various 

projects, and contended, with some support from contractors’ 

employees, that projects she supervised had been discussed at 

meetings without her. The court held that Allen failed to 

rebut the Department’s justifications for her performance 

ratings, Allen II, 943 F. Supp. 2d at 48-52, and that the 

claimed exclusions from meetings were not actionable 

employment decisions, id. at 45-47. 

On appeal, Allen challenges the grant of summary 

judgment on those claims. We review de novo the district 

court’s decision. McGrath v. Clinton, 666 F.3d 1377, 1379 

(D.C. Cir. 2012). 

 

1

 The district court had earlier entered partial summary judgment on 

other retaliation claims not at issue here. See Allen I, 774 F. Supp. 

2d at 206. 
5 

II. LEGAL STANDARD 

Summary judgment is appropriate only if there is “no 

genuine dispute as to any material fact and the movant is 

entitled to judgment as a matter of law.” Fed R. Civ. P. 56(a). 

At summary judgment, the court must avoid weighing the 

evidence and making credibility determinations. We instead 

assume all conflicts would be resolved and all inferences 

drawn in the nonmoving party’s favor and inquire whether, on 

the evidence so viewed, “a reasonable jury could return a 

verdict for the nonmoving party.” Anderson v. Liberty Lobby, 

Inc., 477 U.S. 242, 248 (1986). 

Title VII prohibits federal agencies from discriminating 

against their employees on the basis of race, color, religion, 

sex, or national origin, 42 U.S.C. § 2000e-16(a), and forbids 

retaliation against an employee because she has “opposed any 

practice made an unlawful employment practice by” Title VII, 

or because she “made a charge” under Title VII, id. § 2000e3(a).2

 To prove unlawful retaliation, an employee must 

establish three elements: that she made a charge or opposed a 

practice made unlawful by Title VII, that the employer took a 

materially adverse action against her, and that the employer 

took the action because of her protected conduct. McGrath, 

666 F.3d at 1380. Our analysis at summary judgment tracks 

that of the trier of fact at trial. In other words, a plaintiff 

seeking to defeat summary judgment on her retaliation claim 

must point to evidence from which a reasonable juror could 

 

2

 Title VII contains separate provisions, slightly differently worded, 

prohibiting discrimination by private employers and governmental 

agencies, but this court has construed them as imposing the same 

restrictions and cites the cases construing them interchangeably. 

George v. Leavitt, 407 F.3d 405, 411 (D.C. Cir. 2005). 
6 

conclude that the employer took adverse employment action 

against her in retaliation for her protected activity. 

Cases asserting unlawful retaliation in violation of Title 

VII typically depend on circumstantial evidence of retaliatory 

motive. Direct evidence of reprisal—such as a statement by a 

managerial employee that she or he took action because an 

employee had filed a charge of discrimination—is the 

exception rather than the rule.3

 A Title VII plaintiff may raise 

a preliminary, circumstantial inference of prohibited motive 

through the burden-shifting framework of McDonnell 

Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973). Under 

McDonnell Douglas, a retaliation plaintiff need only show 

that she engaged in protected activity, that she suffered an 

adverse employment action, and that there was a causal link 

between the former and the latter. Hamilton v. Geithner, 666 

F.3d 1344, 1357 (D.C. Cir. 2012). The function of the prima 

facie case is to trigger the employer’s burden to come forward 

with its actual legitimate, non-retaliatory reason for the 

challenged action. If the employer fails to do so, the 

employee is entitled to judgment. 

Once the employer proffers a non-retaliatory reason for 

the challenged employment action, the burden-shifting 

framework falls away, and the “central question” becomes 

whether “the employee produced sufficient evidence for a 

reasonable jury to find that the employer’s asserted nondiscriminatory [or non-retaliatory] reason was not the actual 

reason and that the employer intentionally discriminated [or 

 

3

 An example of that rare case is Forman v. Small, in which the 

recommending official stated that he did not make a promotion 

recommendation because the plaintiff “had already filed an EEO 

complaint” over an earlier non-promotion. 271 F.3d 285, 290, 300 

(D.C. Cir. 2001). 
7 

retaliated] against the employee.” Brady v. Office of Sergeant 

at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008); see Jones, 557 

F.3d at 678 (applying Brady to retaliation claim).4 A key 

component of retaliation cases, in common with 

discrimination claims, is thus the battle over pretext. This is 

the posture of Allen’s case: the Department has put forth its 

reasons for the actions that Allen claims constitute retaliation. 

The question is thus whether those reasons are the actual 

reasons, or whether they are a mask for retaliation. 

A plaintiff opposing summary judgment may raise an 

inference that the employer’s purpose was retaliatory by 

pointing to evidence attacking the employer’s proffered 

reasons, together with other evidence, if any, suggesting that 

retaliation was the real reason. Whether the available 

evidence suffices to support a jury finding of retaliation will, 

necessarily, be a contextual judgment. 

There are multiple ways in which circumstantial evidence 

may support an inference that an employer’s stated reason for 

a challenged employment action was not the actual reason, 

and that the real reason was prohibited discrimination or 

retaliation. The temporal proximity of an adverse action close 

on the heels of protected activity is a common and highly 

probative type of circumstantial evidence of retaliation. See

 

4

 To say that the burden-shifting framework falls away under Brady

is not to suggest that the evidence supporting the prima facie case 

loses relevance. See Reeves v. Sanderson Plumbing Prods., Inc., 

530 U.S. 133, 143 (2000) (noting that, “although the presumption 

of discrimination ‘drops out of the picture’ once the defendant 

meets its burden of production, the trier of fact may still consider 

the evidence establishing the plaintiff’s prima facie case ‘and 

inferences properly drawn therefrom on the issue of whether the 

defendant’s explanation is pretextual’”) (citations, ellipsis omitted). 
8 

Hamilton, 666 F.3d at 1357-59. Other common ways of 

proving invidious motive—whether retaliation or 

discrimination—include pointing to evidence that the 

employer treated other, similarly situated employees better; 

that the employer is “lying about the underlying facts” of its 

decision; that there were “changes and inconsistencies” in the 

employer’s given reasons for the decision; that the employer 

failed to “follow established procedures or criteria”; or that 

the employer’s “general treatment of minority employees” 

(or, in the retaliation context, employees who asserted their 

Title VII rights) was worse than its treatment of nonminorities (or employees who did not assert their Title VII 

rights). Brady, 520 F.3d at 495 & n.3. Invidious motive may 

also be inferred from “‘an error too obvious to be 

unintentional.’” Grosdidier v. Broad. Bd. of Governors, 709 

F.3d 19, 26 (D.C. Cir. 2013) (quoting Fischbach v. D.C. 

Dep’t of Corr., 86 F.3d 1180, 1183 (D.C. Cir. 1996)). 

Typically, successful rebuttal of an employer’s stated 

reason counts as evidence of the invidious motive that is a 

required element of a disparate treatment or retaliation claim. 

George v. Leavitt, 407 F.3d 405, 413 (D.C. Cir. 2005). As 

just noted, it is often reasonable to think that an employer who 

lies or obviously bluffs about or shifts its rationale for 

challenged action is culpable of the charged discrimination or 

retaliation. Evidence that an employer’s proffered reasons are 

“unworthy of credence,” Jones, 557 F.3d at 678 (internal 

quotation marks omitted), has “considerable evidentiary 

significance” because “a lie is evidence of consciousness of 

guilt,” Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1292-93 

(D.C. Cir. 1998) (en banc); see also Reeves v. Sanderson 

Plumbing Prods., Inc., 530 U.S. 133, 147 (2000). But that is 

not inevitably the case. Successfully attacking an employer’s 

proffered reason “alone will not always suffice to permit an 

inference of discrimination.” Aka, 156 F.3d at 1292; see also 
9 

St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993). 

Under the standard for judgment as a matter of law, which 

tracks the standard for summary judgment, the Supreme Court 

has observed that judgment in an employer’s favor is 

appropriate where the plaintiff’s evidence calling the 

employer’s proffered reason into doubt is weak, and the 

record also contains “abundant and uncontroverted 

independent evidence that no discrimination had occurred.” 

Reeves, 530 U.S. at 148 (citing Aka, 156 F.3d at 1291-92). 

We have also recognized that summary judgment against the 

plaintiff is appropriate if the plaintiff’s showing of fabrication 

by her employer “conclusively demonstrates that the real 

explanation for the employer’s behavior is not discrimination, 

but some other motivation.” Aka, 156 F.3d at 1290-91. 

This case addresses a particular kind of contest over 

pretext: Disagreement between a middle manager and her 

immediate supervisor over the validity of discretionary 

judgments about the subordinate’s job performance. Title VII 

requires us to be vigilant in smoking out unlawful motives 

while remaining “reluctan[t] to become involved in the 

micromanagement of everyday employment decisions.” 

Forman v. Small, 271 F.3d 285, 291 (D.C. Cir. 2001). There 

were no relevant comparators under Hill’s direct supervision. 

There was no established track record of Hill’s treatment of 

Allen before she filed her EEO complaints, because it was 

only thereafter that Allen was transferred and placed under 

Hill’s supervision. There are no witnesses other than Allen 

whose testimony supports her claims. Allen’s testimony is 

itself competent evidence, of course, but the facts that it seeks 

to call into question are Hill’s judgments as to whether Allen 

was a sufficiently communicative and active manager, and 

which of Hill’s meetings would address technical aspects of 

contracts under Allen’s purview such that Allen should be in 

attendance. In other words, each is very much a discretionary 
10 

judgment call about one manager’s supervision of another. 

Invidious motive is especially tricky to establish in such 

circumstances because judicially wieldy metrics of fair 

treatment are difficult for plaintiffs to establish. It is where 

the non-retaliatory or non-discriminatory baseline is elusive 

of proof that courts are most apt to hesitate to invade 

employers’ discretion in workplace management. See

Fischbach, 86 F.3d at 1183. “If the employer’s stated belief 

about the underlying facts is reasonable in light of the 

evidence,” and is honestly held, there ordinarily is no basis to 

put the case to a jury, even if the employee disagrees with the 

discretionary decision the employer made. Brady, 520 F.3d at 

495; see George, 407 F.3d at 415. 

III. ANALYSIS 

Allen urges us to find that the Department unlawfully 

retaliated against her in the months following the settlement 

of her earlier discrimination and retaliation claims, but the 

evidence falls short of raising an inference of retaliatory 

purpose. Allen claims she deserved a higher performance 

rating than the one Hill gave her and that she should have 

been invited to certain meetings that she asserts were essential 

to her job duties. Allen has explained why she disagrees with 

Hill’s proffered justifications for the challenged actions, but 

mere disagreement with an employer about reasonable 

judgments concerning the employee’s evaluation and meeting 

participation—judgments that are especially subject to 

managerial discretion—is not enough to sustain a Title VII 

claim. Allen must identify facts from which a reasonable jury 

could conclude that Hill’s justifications for the contested 

performance rating and meeting-composition decisions were 

not her real reasons, but were instead pretexts for retaliation. 

Because Allen has not raised a genuine dispute of fact as to 

whether Hill honestly and reasonably believed the legitimate, 
11 

non-retaliatory reasons she gave for her treatment of Allen, 

the district court did not err in granting the Department’s 

motion for summary judgment. 

A. Performance Review 

Allen’s 2008 performance review period began in 

October 2007 and ended September 30, 2008. Hill rated 

Allen on four “performance goals.” Of those four goals, 

Allen received the highest rating (Achieved Excellence) on 

two of them, but only the next-highest rating (Exceeded 

Expectations) on another, and the third-from-highest rating 

(Achieved Expectations) on a fourth. Her overall rating—

combining scores on her achievement of those four goals with 

scores on seven “core competencies”—was at the Achieved 

Expectations level. Allen challenges two of her performance 

goal ratings, which affected her overall rating, and Hill’s 

failure to provide Allen a mid-year performance review as 

unlawful retaliation. 

1. Performance Goal 2. Allen contends that she 

deserved a rating of Achieved Excellence rather than 

Exceeded Expectations on Performance Goal 2, regarding her 

performance in preparing ICE for a 2009 audit. 2008 Perf. 

Rev., J.A. 183, at 3-5. The Department gave two reasons for 

the rating. 

First, Hill wrote in Allen’s performance review that Allen 

failed to communicate adequately with “subject matter 

experts” over her changes to documentation relating to budget 

and payroll systems. Id. at 14-15. The “subject matter 

experts” at issue were at ICE’s finance center in Burlington, 

Vermont, where invoices are paid and payments to ICE are 

processed. See Allen Decl., J.A. 559 ¶¶ 3-4. According to 

Hill, the finance center complained that Allen made changes 

to drafts of documents without consulting them or explaining 
12 

the changes, resulting in confusion at the finance center as to 

how to respond. Hill Decl., J.A. 478 ¶ 17. Allen has not 

disputed that the finance center complained. Instead, she 

argues that the complaint was not her fault, because, she says, 

Hill never notified her of the requirement that she collaborate 

with the finance center. But Performance Goal 2 of Allen’s 

performance plan—which Hill developed with Allen’s 

detailed input and review—required Allen to collaborate with 

the ICE “Program Offices” to ensure a successful audit. 2008 

Perf. Rev. at 3-4. Allen asserts Hill’s definitions were 

ambiguous and made it unclear what her responsibilities were 

in dealing with the Burlington Finance Center, but Hill avers 

that ICE finance centers were routinely referred to as both 

“Program Offices” (components within ICE) and “subject 

matter experts” (entities whose staff were most 

knowledgeable about the processes Allen was evaluating), 

and thus were clearly entities included in Allen’s Performance 

Goal. Hill Decl. ¶ 9. Allen provides no further response to 

Hill’s assertions that Allen knew or should have known that 

the Burlington Finance Center was among the entities with 

which she was expected to communicate. 

Allen also argues that it would have been inappropriate to 

communicate at that time with the Burlington Finance Center 

about the 2009 audit because that center was the subject of the 

audit Allen was managing, and “[a]s a general matter, an 

auditee does not have input into the auditor’s evaluation of 

their work.” Allen Decl. ¶ 4. But Allen identifies no 

evidence showing that she was auditing the Burlington 

Finance Center, and the Department’s evidence refutes that 

contention. See Supp. Hill Decl., J.A. 563 ¶ 4 (“While our 

office did audit-related work, the ultimate audit was 

performed by KPMG.”). Even if Allen were correct that it 

would have been inappropriate for her to collaborate with the 

finance center, there is no evidence that she brought any such 
13 

concern to Hill’s attention. And even if Allen had established 

that her Performance Goal did not encompass collaborating 

with the finance center, she has failed to identify a material 

issue of fact in dispute because she points to nothing that 

suggests that Hill’s putative error on that score was either 

dishonest or unreasonable. Allen’s effort to dispute the scope 

of her duties as a basis for the challenged performance rating 

thus raises no inference of retaliatory motive. To the 

contrary, after having maintained throughout this litigation 

that she was not aware that collaboration was required, and 

that any collaboration with the finance center would have 

been inappropriate, Allen asserts in her reply brief that she did 

in fact collaborate with the finance center. Allen Reply Br. 

13. 

Hill provided a second, independent justification for the 

Performance Goal 2 rating: delays in the administration of an 

internal financial control test called the “Test of Operating 

Effectiveness.” Hill wrote in Allen’s performance review that 

Allen failed adequately to oversee and coordinate with 

PricewaterhouseCoopers, an ICE contractor working on the 

test. 2008 Perf. Rev. at 15. Hill “believed that if [the project] 

had been managed effectively, it could have been completed 

in the original deadline[].” Hill Decl. ¶ 18. Allen claims the 

delays were actually due to “a significant expansion of the 

scope of the project midway through”—an expansion Allen 

says she recommended against. Allen Decl. ¶ 5. She 

produced no evidence, however, that Hill lacked grounds for 

expanding the project, let alone that Allen predicted and 

timely advised steps to avoid the delays she concedes befell 

the project. Hence, she has failed to identify any material 

factual dispute about the validity of Hill’s criticism. 

Allen also claims that Hill excluded her from meetings 

with PricewaterhouseCoopers, and that those exclusions 
14 

contributed to any “lack of oversight and coordination” of that 

contractor’s work. The meetings from which Allen claims 

she was excluded occurred after the 2008 review period 

closed, however, and are therefore irrelevant to her challenge 

to the performance ratings. Allen’s suggestion that she did, in 

fact, fail adequately to coordinate with the contractors, but 

that it was Hill’s fault she did so, undermines her argument 

that no lack of coordination occurred and that the delays were 

due to the expanded scope of the project. In sum, Allen has 

not identified record evidence upon which a reasonable jury 

could conclude that Hill’s rating of Allen on Performance 

Goal 2 was done in retaliation for Allen’s prior protected 

conduct. 

2. Performance Goal 3. Hill asserted that Allen’s rating 

of Achieved Expectations on Performance Goal 3, rather than 

the Achieved Excellence rating Allen believed she deserved, 

was similarly based on her evaluation of Allen’s oversight of 

ICE finance centers during a project that required the 

collection of documents from those centers for testing; delays 

in document collection resulted in delays in the overall 

project. See 2008 Perf. Rev. at 5, 15; Hill Decl. ¶ 4. Allen 

does not dispute that the project delays were caused by a 

failure to get the documents from the finance center in a 

timely manner. Indeed, Allen initially blamed the delays on 

Hill, who Allen says made the “high risk decision” of 

assigning the testing work to the finance centers rather than to 

the two employees at the Office of Assurance and 

Compliance whom Allen directly oversaw. J.A. 510. Later, 

Allen blamed her subordinate, Melissa Crane, for the same 

delays, on the ground that Crane “was assigned as the project 

leader.” J.A. 518. Allen avers that she did not intervene 

earlier because Crane never informed her of any problems. 

But the record shows that Allen was aware at least two 

months in advance that her office was having difficulty 
15 

getting the documents. See J.A. 511, 516. Allen made little 

progress to remedy the situation in those intervening months. 

Hill claims she personally had to “intervene in the situation 

and direct the efforts to locate the missing documentation to 

resolve the situation.” Hill Decl. ¶ 21. Despite that “crisis,” 

Hill gave Allen the Achieved Expectations rating and not a 

lower mark because, once arrangements were made to adjust 

the deadline, Allen was able to meet it. Id. Even if Allen 

were right that the delays were really caused by Hill’s “high 

risk decision” or Crane’s failure to inform Allen of the 

problems sooner, as a manager, Hill reasonably expected 

Allen to diagnose, communicate over, and forestall problems; 

record evidence raises no inference that Hill’s judgments that 

Allen had failed adequately to do so were unreasonable or 

dishonest. 

Allen also claims a jury could infer retaliation based on 

the fact that Hill approved the highest level rating for Crane, 

meaning that Crane received a higher rating than Allen for 

their work on the same project. Hill thought it was reasonable 

to rate Allen’s subordinate more highly than Allen herself 

because it was Allen, not her subordinate, who had 

managerial responsibility. Allen II, 943 F. Supp. 2d at 51; see 

also Hill Decl. ¶ 22 (justifying rating on grounds that Allen 

“needed to take ownership, and not seek to deflect 

responsibility to those that she supervised”). Although Allen 

disagrees with the rating difference on its merits, she 

identifies no reason to question the genuineness of Hill’s 

stated justification for the differential ratings. 

3. Mid-Year Review. Allen also argues that Hill 

deviated from established Department of Homeland Security 

personnel procedure by failing to give Allen a mid-year 

performance review in the 2008 fiscal year, casting doubt on 

the authenticity of the reasons given for her performance 
16 

ratings. The record demonstrates that, under ordinary 

circumstances, supervisors were expected to give mid-year 

reviews. Keenan Dep., J.A. 311, at 37. Allen’s evidence also 

shows that mid-year reviews were called for “halfway through 

the rating period,” id., but that Allen’s performance plan was 

not finalized until May 2008, almost eight months into the 

performance period, Pl. St. Mat. Facts, J.A. 544 ¶ 8; Hill 

Decl. ¶ 11. Allen did not introduce evidence demonstrating 

that, under those circumstances, Department policy called for 

a mid-year review, and the Department has consistently 

maintained otherwise. Consequently, she has failed to raise a 

genuine dispute of material fact concerning her claim that Hill 

deviated from established procedures. 

* * * 

Nothing in the record suggests that Hill did not genuinely 

and reasonably believe she made the right decision in the 

performance ratings she assigned to Allen, and in providing 

no mid-year review while the parties were negotiating Allen’s 

performance goals. Given the lack of evidence tending to 

undermine the reasons given by Hill, summary judgment in 

favor of the Department on Allen’s performance ratings claim 

was warranted. 

B. Meeting Exclusions 

We also affirm the grant of summary judgment for the 

Department on Allen’s claim of retaliatory exclusion from 

meetings, but on grounds different from the district court’s. 

Because Allen failed to create any material factual dispute 

about the legitimate, non-retaliatory reasons the Department 

proffered, we do not address the question whether the 

challenged actions were insufficiently consequential to count 

as materially adverse, and thus adequate to support a claim of 

unlawful retaliation. 
17 

Allen lists a battery of meetings to which the Department 

concedes she was not invited. According to Hill, she did not 

include Allen in the listed meetings because they involved 

subjects that were not part of Allen’s assigned duties, were 

high level meetings between Hill and her superiors at which 

Allen’s presence was not appropriate, or were convened by 

Hill’s superiors or others, not Hill. She also points out that 

Allen could have sought to participate in the meetings, but 

never did. Allen Dep., J.A. 358, at 33:13-34:17 (Aug. 14, 

2012); see also Hill Decl. ¶ 33. Allen fails to identify 

evidence materially disputing Hill’s explanations. 

Allen focuses primarily on Hill’s meetings with ICE 

contractor PricewaterhouseCoopers. She says the meetings 

involved discussions of ongoing work on a contract for which 

Allen was the Contracting Officer’s Technical Representative 

(COTR), and that such discussions would have been 

inappropriate in the COTR’s absence. Hill conceded the 

meetings took place, but said that they were held to discuss 

potential future business opportunities—a kind of meeting 

Allen acknowledges would not require her presence. Allen 

Dep. at 79:21-80:4. Allen maintains that Hill impermissibly 

discussed the ongoing PricewaterhouseCoopers contract at 

some of those meetings, and that two contractors complained 

to her that Hill had discussed the ongoing work in meetings. 

Id. at 76-77, 96. 

The Department objects that Allen’s testimony 

concerning what attendees told her about meetings is 

inadmissible hearsay. Def. Br. 57. Allen has made no effort 

to demonstrate that she could introduce the evidence in an 

admissible form at trial, such as through the testimony of the 

attendees themselves. See Greer v. Paulson, 505 F.3d 1306, 

1315 (D.C. Cir. 2007). The Department did not raise a 

hearsay objection before the district court, however, so that 
18 

objection is not preserved. See Catrett v. Johns-Manville 

Sales Corp., 826 F.2d 33, 37-38 (D.C. Cir. 1987); 10A 

Charles Alan Wright & Arthur R. Miller, Federal Practice & 

Procedure § 2722 (3d ed. 2015). In any event, Allen’s 

recounting of what the contractors told her is corroborated by 

Hill’s concession that “sometimes” contractors would update 

Hill on the status of ongoing work in Allen’s absence. Hill 

Dep., J.A. 266, at 153:1-11. Hill thus may have breached 

protocol on occasion by discussing ongoing work without 

Allen, the COTR, in attendance. 

Departure from established procedures can be probative 

of pretext, Brady, 520 F.3d at 495 n.3, but none of Allen’s 

evidence suggests that Hill’s alleged violation was any kind 

of conscious evasion. Allen does not assert that Hill lied 

about the content of the meetings or covered up what 

happened during them, or that Hill did not honestly and 

reasonably believe that she acted appropriately. If a 

supervisor’s “stated belief about the underlying facts is 

reasonable in light of the evidence, . . . there ordinarily is no 

basis for permitting a jury to conclude that the employer is 

lying about the underlying facts.” Id. at 495. 

Allen’s evidence concerning the remaining meetings also 

falls short. Hill met with ICE contractor Deloitte & Touche 

on subjects over which Allen had no responsibility. Allen 

Dep. at 24:5-12. And when Hill talked with Department 

personnel over the phone or in person without prior planning 

about matters relevant to Allen’s responsibilities, she did not 

hide those meetings, but reported to Allen about them by 

e-mail. See J.A. 538 (Whalen meeting), 539 (Wetklow 

meeting), 542 (Mason meeting). Finally, nothing in the 

record supports Allen’s contention that she should have been 

included in the high level meeting in December 2008 relating 

to the “Senior Advisory Team.” 
19 

Allen contends that we may infer pretext from Hill’s 

reliance on post-hoc rationales for the meeting exclusions. 

She asserts that Hill was unable during her deposition to 

explain her failure to invite Allen to the meetings, but that, 

when the Department moved for summary judgment ten 

months later, Hill submitted a declaration detailing reasons 

she had not mentioned previously. Allen Br. 35-36. Allen 

seeks to rely on our recognition that “changes and 

inconsistencies in the stated reasons for the adverse action” 

may give rise to an inference of pretext. Brady, 520 F.3d at 

495 n.3. The record in this case, however, belies any 

inconsistency such as would raise an inference that the 

Department’s proffered reasons were invented post hoc to 

cover up retaliatory motives. Hill’s 2009 EEO declaration, 

signed three years before Hill’s deposition, details several of 

the explanations that the Department now advances in 

litigation. Allen quibbles with the phrasing of some of those 

explanations, but Hill’s EEO declaration and her summary 

judgment declaration are consistent in all material aspects. 

Moreover, Allen mischaracterizes Hill’s purported failure to 

explain the meetings during her deposition. During the 

deposition, Hill repeatedly said that the bases for her 

decisions whether to invite Allen to a meeting depended on 

the specific meeting at issue, and frequently said that she did 

not understand Allen’s counsel’s confusing questions. See, 

e.g., Hill Dep. at 130:22-131:1, 132:12-13, 132:17, 133:16, 

137:2-8. When counsel asked her clearly about specific 

meetings, Hill had no difficulty explaining her decisions. See, 

e.g., id. at 153:1-3. With respect to the few, truncated 

deposition excerpts regarding meeting attendance that are part 

of the record, Hill’s explanations did not differ from those she 

gave both in her earlier EEO declaration and in her later 

summary judgment declaration. 
20 

Allen has failed to rebut Hill’s proffered legitimate, nonretaliatory reasons for not inviting Allen to certain meetings. 

Hill has pointed to evidence from which a jury could conclude 

that she honestly and reasonably believed Allen’s presence 

was either not required or inappropriate. Allen has failed to 

identify evidence from which a reasonable jury could not only 

disbelieve Hill’s reasons, but conclude that the real reason 

Hill did not invite Allen to certain meetings and engaged in 

discussions about the ongoing contract work without Allen 

present was to retaliate against Allen for her protected 

activity. 

C. Other Allegations of Retaliation

Allen cites as further support for her retaliation claim 

incidents over and above the acts that she has identified as 

actionable adverse treatment, i.e., the performance ratings and 

non-inclusion in meetings. Allen contends that Hill’s 

antagonism toward her began immediately upon Hill 

becoming aware of Allen’s settlement of her earlier 

discrimination and retaliation claims. It fell to Hill, as Allen’s 

new supervisor, to implement the settlement agreement. 

Allen contends that Hill did so in a grudging manner that, 

“while technically in compliance with the settlement 

agreement, may be viewed by a jury as intentionally designed 

to retaliate” against Allen. Allen Reply Br. 7. Allen asserts 

that Hill’s approach to implementation of the settlement tends 

to show Hill’s retaliatory motive and, together with the other 

evidence, supports her claim of unlawful reprisal. Allen also 

relies on the “entire course of Hill’s treatment of Allen . . . 

beg[inning] almost immediately after Hill learned that Allen 

had engaged in EEO activity” to show such a motive. Id. at 8. 

It is well established that evidence of a pattern of 

antagonism following closely on the heels of protected 
21 

activity and related to the challenged employment action may 

establish the causation element of a Title VII plaintiff’s prima 

facie case. See Hamilton, 666 F.3d at 1357-59 (holding the 

requisite causation showing was made where plaintiff “was 

denied information about a possible detail just two months 

after filing an EEO complaint and, approximately one month 

later, was ultimately passed over for the detail”). Evidence 

that a supervisor was repeatedly hostile toward an employee, 

beginning shortly after the supervisor learned of the 

employee’s protected activity, is bound to be more probative 

than evidence of general hostility without any such temporal 

proximity.5 

 

5

 This court has also suggested that a pattern of negative, on-the-job 

treatment could add up to a materially adverse employment action, 

even if any one of the employer’s complained-of acts would not 

alone count as materially adverse. See Mogenhan v. Napolitano, 

613 F.3d 1162, 1166 (D.C. Cir. 2010) (applying Title VII 

framework to Rehabilitation Act claim and noting that two 

employment actions, “perhaps alone but certainly in combination—

suffice” to satisfy the statutory requirement that employment action 

be materially adverse); cf. Taylor v. Solis, 571 F.3d 1313, 1332 

(D.C. Cir. 2009) (Rogers, J., dissenting) (“[R]etaliation can involve 

a thousand cuts . . . . Where one of those cuts was a materially 

adverse action, it blinks reality to suggest the other 999 shed no 

light on whether that cut was intentional and retaliatory.” (internal 

citation and quotation marks omitted)). That aggregation principle 

makes no difference here, however, because we have assumed for 

purposes of this appeal that each of the challenged actions upon 

which Allen relies was materially adverse. We thus need not 

decide whether considering all her allegations together pushes the 

other activity Allen describes over the line to count as materially 

adverse employer conduct such as might have dissuaded a 

reasonable employee from making or supporting an equal 

employment claim. Our decision does not turn on any shortfall in 
22 

We have also held, however, that the fact that employer 

adverse action follows closely after an employee’s protected 

assertion of rights is not, by itself, always enough to survive 

summary judgment. Title VII does not prohibit antagonism in 

the workplace. Once an employer has put forth legitimate, 

non-retaliatory reasons for a challenged action, “‘positive 

evidence beyond mere proximity is required to defeat the 

presumption that the proffered explanations are genuine.’” 

Hamilton, 666 F.3d at 1359 (quoting Woodruff v. Peters, 482 

F.3d 521, 530 (D.C. Cir. 2007)); see also Talavera v. Shah, 

638 F.3d 303, 313 (D.C. Cir. 2011); Hughes v. Derwinski, 

967 F.2d 1168, 1174-75 (7th Cir. 1992). In Woodruff, we 

explained in an analogous context that, “[i]f temporal 

proximity sufficed to rebut a legitimate proffer, then protected 

activities would effectively grant employees a period of 

immunity, during which no act, however egregious, would 

support summary judgment for the employer in a subsequent 

retaliation claim.” 482 F.3d at 530. 

Here, Allen disagrees with Hill’s reasons for her 

performance review and non-inclusion in various meetings. 

Those adverse actions occurred nine months after the 

settlement of Allen’s earlier claims. As discussed above, 

Allen’s rebuttal efforts have not succeeded in raising material 

factual disputes over the Department’s proffered legitimate, 

non-retaliatory reasons. Adding to the mix consideration of 

Hill’s assertedly compliant but hostile implementation of the 

settlement agreement several months before the challenged 

adverse acts does not tip the balance in favor of making it 

plausible that the real reason Hill acted as she did was to get 

back at Allen for having sued. Nor does adding the other 

 

Allen’s showing of adverse action; what we have concluded is 

wanting is evidence of retaliatory motive. 
23 

incidents of antagonism to which Allen points as evidence of 

retaliatory motive, such as Hill’s failure timely to submit a 

recommendation for Allen for a professional opportunity, 

support an inference of retaliation. See Allen Br. 7, 33. 

In sum, even assuming that a jury were to credit Allen’s 

contentions that Hill implemented the settlement agreement 

and took other actions in a hostile manner, we do not believe 

that a reasonable jury could conclude that any adverse action 

of which Allen complains in this case—the performance 

ratings and non-inclusion in meetings—was taken in 

retaliation. As we have discussed, we have reviewed the 

record evidence and have concluded that Allen has not carried 

her burden to raise an inference that a reasonable jury could 

credit that Hill’s proffered reasons for her evaluation of 

Allen’s work in 2008 and her decisions about meeting 

attendance were false, and that the real reason was to retaliate 

against Allen for her earlier, protected activity. 

* * * 

For the foregoing reasons, the judgment of the district 

court is affirmed. 

So ordered.