OPINION AND ORDER
Plaintiff Sharon Osburn brought this lawsuit against defendant Secretary of the Department of Defense claiming sex discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 1981a & 2000e through 2000e-17. Subject-matter jurisdiction is proper under 42 U.S.C. § 2000e-5(f)(3). The cause is before the court on the Defense Secretary’s motion for summary judgment. The motion will be denied in part.
I. SUMMARY-JUDGMENT STANDARD
“A party may move for summary judgment, identifying each claim or defense— or the part of each claim or defense — on which summary judgment is sought. The court shall grant summary judgment if the movant shows that 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). The court must view the admissible evidence in the light most favorable to the non-moving party and draw all reasonable inferences in favor of that party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp.,
II. BACKGROUND
Osburn alleges that, while she worked at the Defense Information Systems Agency (“DISA”), her first-line supervisor, Tim Tarver, subjected her to an array of sexual harassment, including raping her on five occasions. The facts that follow are drawn from the evidence taken in the light most favorable to Osburn.
Osburn began at DISA as a contract employee in 2005. She was formally hired by the agency as an Information Technology Specialist in February 2007.
Tarver’s harassment of Osburn started several months after her employment by DISA. He would make sexual comments to her. He frequently visited her desk and called her into his office. Coworkers observed this behavior and expressed concern to Osburn. By late 2007, Tarver dialed-up the harassment. He began touching Osburn, patting her buttocks and touching her breasts. He told her he would help her with her career and immediately followed-up with sexual comments to her. He also told her that if she said anything he would ruin her career.
On one occasion, when Osburn stayed late, Tarver stayed at work and cornered her in the office. She was able to convince him to let her leave. Another night, he
At the end of January 2008, Tarver raped Osburn. He called her into his office, locked the door, forcibly performed oral sex on her, and then had intercourse with her. He apologized and promised not to do it again. However, he raped her in his office three more times in the months that followed. In July 2009, he raped her for the fifth and final time while they were on a work trip.
In October 2009, Osburn approached her second-line supervisor, Bib Richert, and told him Tarver was sexually harassing her. She did not tell him about the rapes because she felt too embarrassed. Because Richert was planning to retire soon, he told her to contact Allison Stafford, an Equal Employment Opportunity (“EEO”) specialist. Osburn tried to contact Stafford several times but could not reach her and did not leave a message.
In November 2009, Osburn complained to Dan Raney, who was assuming Richert’s position. She told him that Tarver had made sexual advances and mistreated her. Raney advised Osburn to go to human resources. A short time later, Osburn again complained to Raney about Tarver. Raney did not take any other steps.
Tarver continued to grope Osburn and make sexual comments to her. He also continued to try to arrange for work trips with her, but Raney would cancel those trips. Tarver criticized Osburn in front of co-workers, tried to move her out of her supervisory position, and required her to write a useless report. On April 16, 2010, after Osburn had complained to Raney, Tarver yelled at Osburn in front of her coworkers and ordered her to stay out of Raney’s office.
Osburn decided to report everything. She contacted EEO Specialist Stafford and told her that Tarver had raped her. Stafford told her not to come into work, but set up a time to meet her off site. Tarver called her numerous times in the days that followed, asking her not to proceed with her complaint.
Osburn was placed on administrative leave until May 7, 2010. At that time, she was reassigned to a non-supervisory position. She was given two options: work from home three days a week and work the other two in the same building as Tarver; or work five days a week in an isolated location. She asked for Tarver to be moved instead or for DISA to allow her to transfer to Huntsville, Alabama, but the agency refused. She moved to the fourth floor of the building where her previous office was located. She was not allowed access to areas that her co-workers could access.
Osburn was evaluated and diagnosed with posttraumatic stress disorder. Her doctor determined that she would be unable to return to work because of her symptoms. She submitted an application to the Department of Labor for worker’s compensation benefits. DISA opposed the application, and the Department of Labor denied benefits.
Osburn did not return to work at DISA. On August 15, 2011, citing her extended and indefinite absence, DISA terminated
III. DISCUSSION
Title VII bars an employer from discriminating against an employee “because of ... sex.” 42 U.S.C.2000e-2(a)(l). This provision “prohibits sex-based discrimination that alters the terms and conditions of employment.” Baldwin v. 'Blue Cross/ Blue Shield of Alabama,
A. Sex Discrimination
An employee can establish a sexbaséd violation against an employer in either of two ways: (1) “through tangible employment action” or (2) “through creation of a hostile work environment caused by sexual harassment that is sufficiently severe or pervasive to alter the terms and conditions of the work.” Nurse “BE” v. Columbia Palms W. Hosp., Ltd. P’ship,
Osburn has sought to establish a violation through both theories, tangible-employment action and hostile-work environment.
1. Tangible-Employment Action
A tangible-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.’ ” Vance v. Ball State Univ., — U.S. -,
To establish the Defense Secretary’s liability under a tangible-employment-action theory, Osburn must first prove that there was a tangible-employment action. Minix v. Jeld-Wen, Inc.,
Osburn first points to testimony indicating that Tarver was compiling a record of Osburn’s alleged job performance problems at the time she made her complaint. See, e.g., Tarver Polygraph (Doc. No. 138— 2) at 15 (stating he “had pages of documentation” and “was gonna do something formal” when Osburn reported the instant allegations). But the fact that Tarver may have been planning to take a tangible-employment action does not establish that he actually did so. See Ellerth,
Next, Osburn points out that Tarver would criticize her to other employees, allegedly because he was angry that she had rejected his sexual advances. This conduct, if true, certainly constitutes sexual harassment. But it does not fall within the definition of tangible-employment action. See Ellerth,
Finally, Osburn argues that she received lower bonuses when compared to those of other supervisors who worked under Tarver. However, she has failed to establish that was actually the case. The following exchange at her deposition provides the strongest support:
“Q. And what types of payouts did you yourself receive?
“A. The lowest you can get, 60 percent raise, 40 percent bonus but tax — tax bonus.
“Q. And how much do you believe the other supervisors were getting?
“A. Some of them got 80 percent raises with 20 percent payout bonus.
“Q. And how do you know that?
“A. Because they told me.”
Osburn Dep. Vol. II (Doc. No. 131-7) at 15. Osburn’s only basis for comparison, namely what the other supervisors told her, is hearsay, and she has not explained how it can be reduced to admissible form. See Rowell v. BellSouth Corp.,
2. Hostile-Work Environment
Even where there is no tangible-employment action, an employer can still be held liable for its employees’ actions. To establish a prima-facie case of hostile-work environment “a plaintiff must show: (1) that she belongs to a protected group; (2) that she has been subject to unwelcome sexual harassment; (3) that the harassment was based on her sex; (4) that the harassment was sufficiently severe or pervasive to alter the terms and conditions of employment and create a discriminatorily abusive working environment; and (5) that a basis for holding the employer liable exists.” See Hulsey v. Pride Rest., LLC,
The Defense Secretary argues that Os-burn has failed to establish the second element, that Tarver’s conduct was ‘unwelcome.’ He also argues that, even if Tarver harassed Osburn, Osburn has failed to establish the fifth element, vicarious liability, for two reasons: (a) Tarver was not Os-burn’s supervisor and (b) the agency is entitled to the Faragher/Ellerth affirmative defense.
a. Unwelcome Conduct
The Defense Secretary first argues that Osburn’s harassment, claim fails because she did not establish that Tarver’s conduct was ‘unwelcome.’ See Hulsey,
However, in reality, Osburn has offered significantly more than bare assertions to corroborate her version of events. South-er,
Certainly, there is also evidence that tends to undermine Osburn’s version of events. Tarver himself stated that all of the sexual conduct was consensual even though he admitted that on at least one occasion she said “no.”
The Secretary cites other testimony and evidence that casts doubt on Osburn’s account, including testimony that Osburn flirted with Tarver in public. But the existence of conflicting evidence does not establish, as a matter of undisputed fact, that the sexual conduct was ‘welcomed.’ On the contrary, it appears the Secretary is inviting the court to discount Osburn’s versions of events, which is at least in part corroborated by other witnesses, based on a suggested negative determination regarding her credibility. To do so would be inappropriate at summary judgment. Frederick v. Sprint/United Mgmt. Co.,
b. Vicarious Liability
The remaining issue is whether the Secretary, as head of the Department of Defense, of which DISA is a component, is liable for Tarver’s harassment. The Supreme Court recently reviewed the range of possibilities for employer liability in harassment cases: ■
“Under Title VII, an employer’s liability for such harassment may depend on the status of the harasser. If the harassing employee is the victim’s co-worker, the employer is liable only if it was negligent in controlling working conditions. In cases in which the harasser is a ‘supervisor,’ however, different rules apply. If the supervisor’s harassment culminates in a tangible employment action, the employer is strictly liable. But if no tangible employment action is taken, the employer may escape liability by establishing, as an affirmative defense, that (1) the employer exercised reasonable care to prevent and correct any harassing behavior and (2) that the plaintiff unreasonably failed to take advantage of the preventive or corrective opportunities that the employer provided.”
Vance,
As set forth in Vance, Osburn may establish the Defense Secretary’s vicarious liability for Tarver’s conduct in either of two ways. Both require the court to find that Tarver was Osburn’s ‘supervisor,’ as that term was interpreted in Vance. First, if Osburn can establish a tangible-employment-action violation, then the Secretary is strictly liable. Second, if Osburn can establish a hostile-work-environment violation, then he is vicariously liable un
The Defense Secretary makes two arguments against vicarious liability: first, that Tarver was not Osburn’s supervisor; and, second, that he has established the affirmative defense.
i. Supervisor
The Defense Secretary first argues that Tarver did not qualify as Os-burn’s ‘supervisor’ as that term was recently defined in Vance. If the court were to accept that argument, he could not be held vicariously liable for Tarver’s conduct on either theory discussed above. However, the court finds that there is a genuine dispute of material fact on this issue.
The Supreme Court established the current regime for determining employer’s vicarious liability under Title VII in a pair of 1998 cases: Faragher and Ellerth. However, just last year, the Court resolved “a question left open” in Faragher and Ellerth: “who qualifies as a ‘supervisor’ in a case in which an employee asserts a Title VII claim for workplace harassment?” Vance,
The Defense Secretary argues that, although Tarver’s title and job description both indicated he was Osburn’s supervisor, Tarver does not qualify as one under Vance. Specifically, he has offered evidence that first-line supervisor Tarver did not have the authority to take any of the actions specified in Vance. In the Secretary’s view, this evidence establishes that only the second- and third-line supervisors were ‘supervisors’ for the purposes of Title VII.
In Vance, the Supreme Court emphasized the need for a simple and administra-
For example, in considering the implications of the definition it adopted, the Court found that, “even if an employer concentrates all decisionmaking authority in a few individuals, it likely will not isolate itself from [vicarious] liability” because, in that instance, “those individuals will have a limited ability to exercise independent discretion when making decisions and will likely rely on other workers who actually interact with the affected employee.” Vance,
The Court struck a similar tone in discussing how the adopted definition squared with the Court’s prior holdings in Faragher and Ellerth. The Court had treated the harassers in those cases as supervisors, and the plaintiff in Vance argued that they would not qualify as such under the Court’s new definition. In response to this argument, the Court noted that the issue of whether the harassers were supervisors had not been raised in either prior case but found that the harassers in those cases would (or, in one case, might) qualify as supervisors. In considering Ellerth, the Court noted that the harasser had hired the victim, and that “he promoted her (subject only to the ministerial approval of his supervisor, who merely signed the paperwork).” Vance,
But the Court’s discussion of Faragher was starker: the Court found it was “clear” that one harasser, “had authority to take tangible employment actions affecting the victim” based on the fact that “no one ... was hired without his recommendation ”; that he “initiated firing and suspending personnel”; that his “evaluations ... translated into salary increases”; and that he “made recommendations regarding promotions.” Id. at 2446, 2446 n. 8 (emphasis added, internal quotation marks omitted). As to the other harasser in that case, the Court indicated that he “might” qualify as a supervisor based on his “disciplinary decisions and ... input on ... evaluations” if those actions had “economic consequences.” Id. at 2447 n. 9. Similarly, if his assignment of different responsibilities had “economic consequences,” for example by “foreclosing eligibility for a pro
Taken together, the Court’s point is clear: supervisors are not limited to those who have a formal, ‘on the books’ power to take tangible-employment actions. Rather, what the Court sketched in Vance is an approach under which “[a] manager who works closely with his or her subordinates and who has the power to recommend or otherwise substantially influence tangible employment actions, and who can thus indirectly effectuate them, also qualifies as a ‘supervisor’ under Title VII.” Kramer v. Wasatch Cnty. Sheriffs Office,
In light of this understanding, the evidence to which the Defense Secretary points is unpersuasive. In support of his motion for summary judgment, the Secretary introduced a series of affidavits that each state, nearly word-for-word, that Tar-ver “did not have the authority to take tangible employment actions against Ms. Osburn, that is, [he] did not have the authority to make significant changes in her employment status, such as hiring, firing, failing to promote, reassigning her to significantly different responsibilities, or making a decision causing a significant change in her benefits.” Tarver Affidavit (Doc. No. 131-14) at 2-3; see also Richert Affidavit (Doc. No. 131-15) at 2-3 (Tarver did not have authority to “unilaterally” make such changes); Raney Affidavit (Doc. No. 131-16) at 2-3 (same); Dingier Affidavit (Doc. No. 131-17) at 2-3 (same). As explained above, the mere fact that Tarver could not take these actions is not dispositive. The affidavits also purport to establish that the authority to take the specified actions was vested with Tarver’s superiors and that he could not “unilaterally” take action against Osburn. Richert Affidavit (Doc. No. 131-15) at 2. But these affidavits do not establish that Tarver had no “power to recommend or otherwise substantially influence tangible employment actions [and] thus indirectly effectuate them,” Kramer,
The Secretary argues, though, that Os-burn has not come forward with any evidence that Tarver does qualify as a supervisor. The court finds otherwise. Tarver’s job description, for example, provides that among his “major duties” was “supervising employees,” and, among other things, his job involved “evaluating] work performance of subordinates” and “mak[ing] selections for promotions and reassignments.” DISA Position Description (Doc. No. 138-13) at 3-4. Furthermore, Tarver described his own involvement in overseeing Osburn in terms that echo the conduct that the Supreme Court indicated did or might qualify as ‘supervisory’: Tarver was responsible for Os-burn’s performance evaluations, see Tar-ver Dep. (Doc. No. 138-1) at 14, 37-38, Tarver Affidavit (Doc. No. 131-14) at 3; and he was empowered to recommend both discipline, see Tarver Dep. (Doc. No. 138-1) at 16, as well as salary increases, awards, and bonuses, see Tarver Affidavit (Doc. No. 131-14) at 3. It is- clear from both his statements and Osburn’s that, of Osburn’s supervisors, it was Tarver who worked with Osburn most closely on a day-to-day basis. Considering this evidence in the light most favorable to Os-burn, a jury could conclude that Tarver was a “manager who work[ed] closely
ii. Faragher/Ellerth affirmative defense
The Defense Secretary next invokes the Faragher/Ellerth affirmative defense. “An employer avoids liability under this defense if: 1) it ‘exercised reasonable care to prevent and correct promptly any sexually harassing behavior’; and 2) the employee ‘unreasonably failed to take advantage of any preventative or corrective opportunities [it] provided.’ ” Nurse “BE” v. Columbia Palms W. Hosp., Ltd. P’ship,
The first prong of the affirmative defense is that the employer “exercised reasonable care to prevent and correct promptly any sexually harassing behavior.” Nurse “BE”,
The Defense Secretary argues that DISA took reasonable care to prevent harassment by promulgating a series of sexual-harassment policies.
The Secretary argues that the polices were effectively published. In support, he offers copies of the policies, see Policies (doc. no. 131-12), and affidavits indicating that the policies were published on a bulletin board outside of Osburn’s office, as well as on the agency’s internal network and external website.
Genuine disputes also prevent the court from concluding that DISA promptly took reasonable care to correct harassment once it had been identified. The Secretary’s burden is to establish that DISA “acted reasonably promptly on [Os-burn’s] complaint when it was given proper notice of her allegations as required under its complaint procedures.” Frederick,
According to Osburn’s testimony, when she reported to her second-line supervisors that Tarver was sexually harassing her, they referred her elsewhere and took no action themselves. See Osburn Dep. Vol. I (Doc. No. 131-1) at 19 (Osburn reported sexual harassment to Richert in October 2009, and Richert told her that she “need[ed] to watch [her] back” and that she should “contact [EEO Specialist] Allison [Stafford]”); id. (Osburn reported sexual harassment to Raney in November 2009, and he told her that if she “felt [she] had been harassed or worse, [she needed] to ... document [her] actions and go to [Human Resources]”).
Because the court has concluded that genuine disputes of material fact preclude
In summary, because a jury could conclude that Tarver was Osburn’s supervisor, as defined in Vance; that Osburn was subjected to a hostile-work environment; and that DISA failed to take reasonable care to prevent harassment, summary judgment on Osburn’s sex discrimination claim will be denied.
B. Retaliation
“Title VII prohibits not only discrimination, but retaliation against an employee because she ‘has opposed any practice made an unlawful employment practice by Title VII.’ ” Kidd v. Mando Am. Corp.,
In this case, Osburn has pointed to the following allegedly retaliatory conduct: (1) her transfer to a nonsupervisory position in isolated conditions; (2) her constructive discharge; and (3) DISA’s opposition to her application for worker’s compensation benefits.
1. Transfer
Osburn first argues that her transfer to a non-supervisory position in
“To make out a prima facie case of retaliation, a plaintiff must show: (1) that she engaged in an activity protected under Title VII; (2) she suffered a materially adverse action; and (3) there was a causal connection between the protected activity and the adverse action.” Kidd,
An action is materially adverse if it “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Burlington N. & Santa Fe Ry. Co. v. White,
As to Osburn’s transfer following her EEO complaint, it is undisputed that she did not suffer any loss of pay or benefits. However, Osburn argues that she was stripped of her supervisory duties and was isolated from coworkers, unable to access certain work areas. The Secretary contends that this transfer and isolation allegation does not meet the prima-facie standard for a retaliation case.
It is open to question whether the Secretary is applying Burlington or the old standard. Compare Def. Br. in Supp. of Summ. Judgt. (Doc. No. 134 at 56)(quot-ing Burlington) with id. at 57 (“the conduct must meet some threshold level of substantiality”); Dft. Reply Br. Summ. Judgmt. (Doc. No. 144)(“the employee must present evidence of an objectively serious and material change”). To the extent that he relies on the old substantiality standard, the Burlington Court “effectively rejected” it, and his arguments are thus inapplicable. Crawford,
The Secretary also argues that Osburn has failed to establish the causation prong of the prima-facie case with regard to her transfer.
Because Osburn has established a pri-ma-facie case, the burden shifts to the Defense Secretary “to rebut the presump
As to Osburn’s transfer, which allegedly involved stripping her of supervisory authority and isolating her from other employees and work areas, the Secretary has carried his “exceedingly light” burden of production. Perryman v. Johnson Products Co., Inc.,
However, Osburn has established genuine disputes of material fact regarding the Secretary’s account. According to Os-burn, she did not request a transfer; rather, she asked only that Tarver be transferred away. See Osburn Dep. Vol. II (Doc. No. 131-7) at il (“I requested Tarver be moved. That case, I could stay where I was.”). Osburn says she requested a transfer, and specifically a transfer to a particular supervisor, only if Tarver could not be moved. Id. Furthermore, it is undisputed that Tarver was transferred to another building. See Dingier Affidavit (Doc. No. 131-17) at 4. Thus, on Osburn’s version of events, and given that Tarver would be gone, she did not request a transfer. And, if a jury were to believe her, that would be a basis to discredit the Secretary’s evidence that the reason for her transfer, and the accompanying loss of supervisory duties, was that she requested it. See Osburn Dep. Vol. II (Doc. No. 131-7) at 11 (“I didn’t think they would take .. me away from my team because of something he did to me. I requested that he no longer supervise.”).
Similarly, Osburn has introduced evidence to rebut the Secretary’s suggestion that she was isolated in order to protect her and give her a sense of safety. First, Osburn denies that she asked to be placed in a safe environment. Id. But, furthermore, there is evidence based on which a-jury could discount even the perceived need to move Osburn out of safety concerns. Tarver had been transferred to another building, directed not to enter his prior building, and required to surrender
Taken together, Osburn’s evidence has cast sufficient doubt on the Defense Secretary’s proffered explanations for the transfer that a reasonable jury could disbelieve those reasons. “A plaintiff’s prima facie case, combined with sufficient evidence to. find that the employer’s asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully [retaliated].” Reeves v. Sanderson Plumbing Products, Inc.,
2. Constructive Discharge
In her complaint, Osburn also alleged that DISA constructively discharged her in retaliation for filing her EEO complaint. She makes no such argument in her brief. The court finds that she has abandoned this argument. See Resolution Trust Corp. v. Dunmar Corp.,
3. Worker’s Compensation
Osburn’s last allegation is that DISA retaliated against her by opposing her worker’s compensation claim. Because the parties did not fully address this issue in their briefing, the court makes no determination on the issue and, instead, will discuss this issue further with the parties.
Accordingly, it is ORDERED that the motion for summary judgment (Doc. No. 131) filed by defendant Chuck Hagel, in his capacity of Secretary of the Department of Defense, is denied in all respects except as to plaintiff Sharon Osburn’s claim of retaliatory opposition to her request for worker’s compensation. The court reserves ruling at this time on this claim of retaliatory opposition to plaintiff Osburn’s request for worker’s compensation.
It is further ORDERED that the retaliatory constructive-discharge claim is dismissed as abandoned.
Notes
. Osburn states in her brief that Tarver was convicted of harassing communications arising out of this conduct. However, her citations to the record do not support that assertion.
. In her brief, Osburn states that Tarver admitted, during the course of a polygraph examination, that he "coerced Osburn to have sex with him.” Pf. Opp. Br. Summ. Judgt. (Doc. No. 139) at 16. It is true that Tarver said that he coerced sex during the trip in Ohio. See Polygraph transcript (Doc. No. 138— 2) at 233 ("Has there been times where she said no we shouldn't be doing this, but you still coerced her into engaging in sex? Tar-ver: Yes.”). Tarver, however, argues that this statement is taken out of context and that the sex was consensual.
He states that what he meant by coercion is that she told him "no, we don’t need to be doing this,” and he insisted. Id. at 234. He contends that this was said playfully, and she then actively and voluntarily participated in the sexual contact. He stated: "I never forced her to do it. She could have told me no, not tonight, I'm not gonna do this anymore and I would have left.” Id. at 239-240. His argument is that Osburn's initial "no” and his rejoinder were merely playful banter and that he would have stopped had she subsequently said "no.”
Of course, Tarver may not have been truthful in his polygraph examination; indeed, for the purposes of summary judgment, the court must assume he was not because his account of these events is so dramatically different from Osburn’s.
. The court notes that the dark history of the treatment of victims of sexual assault in court proceedings lurks behind cases such as this one. There was a time not long ago when courts and legal scholars viewed allegations of rape with automatic suspicion, and judges instructed juries accordingly. See Tera Jckowski Peterson, Distrust and Discovery: The Impending Debacle in Discovery of Rape Victims' Counseling Records in Utah, 2001 Utah L.Rev. 695 (2001). By and large those days are now past, but courts must be vigilant to ensure that such prejudices do not infect cases like this one.
. The Defense Secretary has made no argument that, if Osburn’s account of events is true, Tarver did not alter the terms or conditions of employment by creating a hostile-work environment. In addressing that claim, courts look to four factors: " '(1) the frequency of the conduct; (2) the severity of the conduct; (3) whether the conduct is physically threatening or humiliating, or a mere offensive utterance; and (4) whether the conduct unreasonably interferes with the employee’s job performance.'" Walton v. Johnson & Johnson Servs., Inc.,
This court "can think of few incidents, isolated or not, that are more serious than those alleged to have occurred in this case." Walton,
. The Secretary also points to deposition testimony in which Osburn acknowledged that Tarver did not have the authority to reassign her. See Osburn Dep. Vol. I (Doc. No. 131-1) at 55. Obviously, this bears on only transfers and does not address what other authority Tarver might have.
. Osburn moved to strike or disregard most of the policies based on alleged discovery violations. In a separate opinion and order, the court has denied that motion.
. The Secretary also introduced evidence that the EEO process was addressed at a new employee orientation which Osburn attended. In a separate opinion and order, the court found that the evidence regarding what topics were discussed at the orientation should be disregarded.
. The Secretary introduced evidence that Os-burn attended a training in February 2009, at which the harassment policy was discussed. See Stafford Affidavit (Doc. No. 131-13); Sign-in Sheet (Doc. No. 144-6). Osburn objects to this evidence on evidentiary grounds. However, even if the evidence is reducible to admissible form and establishes that Osburn attended the training, it remains true that the Secretary has failed to show the policies were effectively published. After all, Osburn claims Tarver was harassing her by mid-2007, nearly two years before the disputed training.
. The fact that the supervisors deny that Os-burn reported sexual harassment, see Richert Affidavit (Doc. No. 131-15); Raney Affidavit (Doc. No. 131-16), simply means there is a genuine dispute on that issue.
. The Secretary argues that Richert and Ra-ney did take action: they told Osburn to talk to someone else. Once again, the court may look to DISA’s own policies for guidance, see Coates,
.Osburn contends that DISA's response was also inadequate because its remedy — namely her transfer — left her in a worse position. This transfer will be discussed in the retaliation section below. Given the material disputes already identified for the sex discrimi
. In her brief, Osburn also points to a narrative she submitted as an exhibit to her opposition to the Secretary's motion for summary judgment, claiming it contains “a detailed timeline .of events which constitute retaliatory harassment.” Pf. Opp. Br. Summ. Judgt. (Doc. No. 139) at 60. The statement, which is 15 pages long and single spaced, discusses the events following her report to EEO Specialist Stafford in great detail, including events that could not possibly constitute retaliation. See, e.g., Osburn Statement (Doc. No. 138-26) at 5 ("Mike took Rocky to doggie day care.”). Os-burn fails to explain which of those events she considers to be retaliation. See Fed.R.Civ.P. 56(c)(1) ("A party asserting that a fact cannot be or is genuinely disputed must support the assertion by ... citing to particular parts of materials in the record”) (emphasis added). Furthermore, the statement appears not to be sworn or made under penalty of perjury. See Carr v. Tatangelo,
. “The Supreme Court recently held that a plaintiff must demonstrate that his protected activity was the 'but-for' cause of the adverse employment decision.” Mealing v. Georgia Dep't of Juvenile Justice,
. In his brief, the Secretary states that the transfers were undertaken while official investigations were pending, apparently suggesting that this justified Osburn's isolation. See Dingier Affidavit (Doc. No. 131-17) at 4. Osburn has denied the investigations were ongoing at the time. Osburn Dep. Vol. II (Doc. No. 131-7) at 11.