USCA4 Appeal: 21-2328 Doc: 29 Filed: 10/19/2023 Pg: 1 of 16

PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 21-2328

ASHLEY NICOLE NOONAN, f/k/a Ashley Culpepper,

Plaintiff - Appellant,

v.

CONSOLIDATED SHOE COMPANY, INC.,

Defendant - Appellee.

Appeal from the United States District Court for the Western District of Virginia, at Lynchburg. Norman K. Moon, Senior District Judge. (6:20-cv-00068-NKM-RSB)

Argued: January 24, 2023 Decided: October 19, 2023

Before HARRIS, RICHARDSON, and RUSHING, Circuit Judges.

Affirmed by published opinion. Judge Richardson wrote the opinion, in which Judge Harris and Judge Rushing joined.

ARGUED: Johnneal M. White, GLENN ROBINSON CATHEY MEMMER & SKAFF PLC, Roanoke, Virginia, for Appellant. Monica Taylor Monday, GENTRY LOCKE, Roanoke, Virginia, for Appellee. ON BRIEF: Hunter D. Weikel, GLENN ROBINSON CATHEY MEMMER & SKAFF PLC, Roanoke, Virginia, for Appellant. Catherine J. Huff, GENTRY LOCKE, Roanoke, Virginia, for Appellee. USCA4 Appeal: 21-2328 Doc: 29 Filed: 10/19/2023 Pg: 2 of 16

RICHARDSON, Circuit Judge:

Ashley Noonan claims that she suffered sex-based wage discrimination while

working at Consolidated Shoe Company, and, what’s more, was retaliated against when

she complained about it. Before the district court, she sought to show wage discrimination

by comparing her wages to those of Matt Wiese, a male co-worker at Consolidated Shoe.

But Wiese, a graphic designer, had a meaningfully different role at the company than

Noonan, a content creator and part-time photographer. Because the two did not perform

similar jobs, Noonan could not rely on Wiese as a comparator to show wage discrimination.

So the district court granted summary judgment to Consolidated Shoe.

Noonan appealed but dropped her comparator argument. She instead argues that

her complaint also included a broader theory that women at Consolidated Shoe were

categorically paid less than men. This, she claims, means that she doesn’t need a

comparator to create an inference of discrimination because she can prove that

Consolidated Shoe would have paid him more than her if he existed. What evidence does

Noonan have for this claim? According to her, statistical evidence about Consolidated

Shoe’s pay practices. But what she really has is an email from her boss showing, at most,

that—based on some back-of-the-envelope math—among the four members of Noonan’s

department at work, only the man was paid at an alleged market rate. And none of the

women performed a similar job that would permit inferring discrimination from the pay of

these four people. So the district court properly granted summary judgment and we affirm.

2 USCA4 Appeal: 21-2328 Doc: 29 Filed: 10/19/2023 Pg: 3 of 16

I. Background

Consolidated Shoe is a shoe distributor based in Lynchburg, Virginia. In 2016, the

company hired Noonan as Content Marketing Coordinator. Noonan had the chops for the

job. In college, she majored in communications and minored in public relations and

advertising. After college, she held marketing-related positions at several other firms.

When Consolidated Shoe hired Noonan, she asked for a starting salary of $46,000 but

eventually agreed to $39,000.

Right before Noonan was hired, Consolidated Shoe’s graphic designer, Kristina

Petrick, left the job. So, with a co-worker’s assistance, Noonan handled some of the

graphic-design responsibilities when she came aboard. Then when the co-worker also left,

Noonan alone shouldered the graphic-design responsibilities—an awkward fit given that

she had little relevant experience. Consolidated Shoe made do with Noonan working as

graphic designer until Petrick returned in 2018. But, even then, Noonan retained some

graphic-design responsibilities and was given the title of Graphic Designer in July 2018.

Not long after her return, Petrick was promoted to Creative Director and tasked with

running the marketing department. So Consolidated Shoe was once again without an

experienced graphic designer. It went on the hunt for one and settled on Matt Wiese. He

had all the bona fides: a degree in graphic design and impressive work experience as a

graphic designer for recognizable names like Sunday Night Football. He was offered the

position of Senior Graphic Designer with a starting salary of $45,000. But after Weise

forwarded a paystub showing a $66,430 salary at his then-current position, Consolidated

Shoe countered with $68,000, and he accepted.

3 USCA4 Appeal: 21-2328 Doc: 29 Filed: 10/19/2023 Pg: 4 of 16

Around the same time that Wiese was hired, Noonan asked for a pay raise. She was

rebuffed but given a new title: Senior Photographer and PR Specialist. Also around the

same time, Petrick sent an email “petitioning” Consolidated Shoe’s finance department for

salary bumps for her employees in the marketing department. In the email, Petrick listed

each employee’s current pay compared to what she terms a “local industry standard” for

generic jobs that she decided roughly matched the different jobs in the marketing

department. J.A. 164. She made up the “local industry standard” pay from websites that

conglomerate publicly available salary information, such as Glassdoor.com and

Salary.com. And compared to her made-up standard, she argued that the three female

workers in Consolidated Shoe’s marketing department—including Petrick herself—were

paid well below the “local industry standard.” J.A. 164. So Petrick requested that the three

women—including she—receive a raise. In contrast, Petrick’s “local industry standard”

for the only man in the department, Wiese, showed that he made very close to (but slightly

below) the “local industry standard.” Wiese, as you recall, had just started, and Petrick did

not request that he receive a raise. All her requested raises were denied.

Later, in 2019, a co-worker at Consolidated Shoe found Wiese’s paystub and shared

it with Noonan. Noonan was shocked by what she saw—Wiese made considerably more

than she did. Armed with this evidence, she confronted Petrick with her belief that she was

being subjected to sex discrimination in compensation and asked for a raise. Things didn’t

go well. Not only did Petrick refuse to raise her pay, but Petrick also admonished Noonan

4 USCA4 Appeal: 21-2328 Doc: 29 Filed: 10/19/2023 Pg: 5 of 16

that “it was a fireable offense to know another employee’s salary.” 1 J.A. 1299. And, for

the icing on the cake, Petrick insulted Noonan by asking her whether money was the most

important thing to her.

This conversation left Consolidated Shoe with some cleaning up to do. As for the

suggestion that Noonan had committed a fireable offense, Melanie Christmas,

Consolidated Shoe’s Human Resources Director, clarified to Noonan that she, in fact, could

not be fired for what she did. 2 And Petrick apologized for the remark. As for the allegation

of wage-based sex discrimination, that would take more than an apology. The company

took the allegation seriously. The CEO got involved and ordered an internal investigation.

The investigation determined that there was no sex discrimination in compensation; Wiese

was paid more because of his greater job duties, experience, and skills.

Noonan had raised the pay issue in December 2019. So by the time the weeks-long

investigation was winding down, something else was winding up: the COVID-19

pandemic. In the following months, things changed considerably in Consolidated Shoe’s

1 Petrick recalls things differently. She testified that she told Noonan: “[W]hoever told you [Wiese’s salary] should be fired.” J.A. 911–12. But, with conflicting testimony about what was said, at this stage of the case, we take Noonan’s version of the story. See Walker v. Donahoe,

(4th Cir. 2021). 2 The clarification was apparently unnecessary because Noonan told Petrick during the conversation that knowing a co-worker’s pay was not a fireable offense. On appeal, the parties agree that Petrick’s statement was inaccurate—Noonan did not commit a fireable offense. Still, Consolidated Shoe’s employee handbook did say: “An employee’s salary or rate of pay is a strictly confidential matter between the employee and CSC and must not be discussed with co-workers.” J.A. 165. Given the rule’s reference to confidentiality, it might be more naturally read to prohibit discussing one’s own pay with co-workers. But it could be read to technically prohibit Noonan’s conduct. 5 USCA4 Appeal: 21-2328 Doc: 29 Filed: 10/19/2023 Pg: 6 of 16

marketing department. Some of those changes were the clear result of the pandemic and

consequent economic conditions. But Noonan flags other changes as retaliation for her

sex-discrimination accusation. More specifically, she claims that, in retaliation for her

complaints, Consolidated Shoe took some of Noonan’s job responsibilities away from her.

Eventually, Consolidated Shoe let both Noonan and Wiese go in June 2020. Noonan

doesn’t challenge her termination as retaliatory, but she does claim that Consolidated Shoe

retaliated by withholding a letter of recommendation after letting her go. She’s right that

Consolidated Shoe never provided her a recommendation letter. On their way out from the

company, both Noonan and Wiese were offered severance agreements, which included a

letter of recommendation as a perk. Wiese accepted the severance agreement. And he

received a letter of recommendation. Noonan rejected the severance agreement. And she

did not receive a letter of recommendation.

Noonan felt she was mistreated. She disagreed with the outcome of Consolidated

Shoe’s internal investigation and viewed the pay disparity as illegal sex discrimination.

She also thought that she was retaliated against for raising her concerns with Petrick. So

she sued, alleging: (1) wage discrimination under Title VII, (2) wage discrimination under

the Equal Pay Act, (3) retaliation under Title VII, and (4) retaliation under the Equal Pay

Act. Consolidated Shoe moved for summary judgment, primarily arguing that Wiese was

not a proper comparator for the wage-discrimination claims and that Noonan could not

show that she suffered any materially adverse retaliation. The district court agreed and

granted summary judgment on all claims.

6 USCA4 Appeal: 21-2328 Doc: 29 Filed: 10/19/2023 Pg: 7 of 16

II. Discussion

We review the district court’s grant of summary judgment de novo. Richardson v.

Clarke,

(4th Cir. 2022). To survive summary judgment, a plaintiff must

point to “evidence on which the jury could reasonably find for” her. Anderson v. Liberty

Lobby, Inc.,

(1986). Noonan has pointed to no such evidence, so we

affirm the grant of summary judgment to Consolidated Shoe.

A. Title VII discrimination

Title VII says that an employer cannot “discriminate against any individual with

respect to [her] compensation . . . because of such individual’s . . . sex.” 42 U.S.C.

§ 2000e-2(a)(1). A Title VII plaintiff may build a case through the burden-shifting

framework of McDonnell Douglas Corp. v. Green,

(1973). 3 This well-

trodden path allows a plaintiff to establish an inference of discrimination by making out a

prima facie case. In pay-disparity cases, the prima facie case requires a plaintiff to establish

that “(1) she is a member of a protected class, (2) she was performing her job satisfactorily,

(3) an adverse employment action occurred, and (4) the circumstances suggest an

unlawfully discriminatory motive.” Spencer, 919 F.3d at 207. Typically, in such cases,

the circumstance that “suggest[s] an unlawfully discriminatory motive,” id., is the

existence of a male comparator. That’s because, in general, the most obvious reason for

3 Of course, a Title VII plaintiff need not rely on the burden-shifting framework. See Spencer v. Va. State Univ.,

(4th Cir. 2019). She can also, like a plaintiff in any other type of case, present “direct or circumstantial evidence” to prove her claim.

When that’s the case, we “utilize ordinary principles of proof” and ask whether the plaintiff presented evidence of “sufficient probative force” to allow a jury to find for her. Brinkley v. Harbour Recreation Club,

(4th Cir. 1999). 7 USCA4 Appeal: 21-2328 Doc: 29 Filed: 10/19/2023 Pg: 8 of 16

pay disparity is that the employer values one job less than it does another. But if there’s a

male comparator who performs a similar job to the plaintiff yet is paid more, then we may

infer that sex discrimination is potentially the reason the plaintiff was paid less. So then

the burden shifts to the employer to provide a different explanation.

In her complaint, and before the district court, Noonan relied on a male comparator,

Matt Wiese, who was the Senior Graphic Designer. She argued that he performed a similar

job but was paid more than she was paid. But the district court rejected that argument,

finding that Wiese did not perform a similar job. Now, on appeal, Noonan has abandoned

any argument that Wiese’s job was similar. And rightfully so—Wiese had a distinct job.

See

(noting that finding two jobs are “similar” under Title VII requires considering

“whether the employees (i) held the same job description, (ii) were subject to the same

standards, (iii) were subordinate to the same supervisor, and (iv) had comparable

experience, education, and other qualifications—provided the employer considered these

latter factors in making the personnel decision”). Remember, the value of a similarly

situated comparator comes from the fact that we can assess disparate treatment after

eliminating the obvious explanation for the disparity. So where the comparator performs

a dissimilar job, no comparative inference of discrimination can be drawn. See

at 207–

08.

Of course, Noonan doesn’t need a male comparator to establish a prima facie case

of pay discrimination. See Laing v. Fed. Exp. Corp.,

(4th Cir. 2013)

(“This is not to say that comparator evidence is the final answer in the discrimination

8 USCA4 Appeal: 21-2328 Doc: 29 Filed: 10/19/2023 Pg: 9 of 16

law.”). But she must still present evidence that reasonably creates an inference of an

unlawfully discriminatory motive to shift the burden to Consolidated Shoe.

In an attempt to create this inference, Noonan points out that—based on her boss’s

email—not only did Wiese make more money than she made, but he was also paid at the

“local industry standard,” while the female employees in the marketing department were

paid below that standard. From this, she argues we can infer that the company

discriminated against women. 4 In essence, Noonan argues that the so-called “local industry

standard” creates some objective value of what marketing-department work was worth.

And since she and two other female employees were paid less than this standard, whereas

Wiese, the only male in the department, was not, we should infer discriminatory animus. 5

4 Consolidated Shoe argues that Noonan failed to plead and present below the theory that she now presses on appeal. That’s a close question. The substantive Title VII allegations in her complaint focused on Wiese. Yet Noonan also generically pleaded that Consolidated Shoe “violated Title VII . . . when it subjected [her] to disparate treatment . . . based on her sex.” J.A. 7; see J.A. 24 (Consolidated Shoe “discriminated against [Noonan] based on her sex when it paid a male employee significantly higher wages . . . .”). And she pleaded specific facts supporting this theory of liability. Cf. Bell Atl. Corp. v. Twombly,

(2007). In any event, because Noonan’s claim fails even if she did adequately allege such a theory, we need not decide whether the claim was preserved. 5 Noonan inaccurately claims that the Supreme Court in Washington County v. Gunther,

(1981), supported her theory by blessing an inference of discrimination based on paying women below a market rate while paying men at the market rate. Not so. In Gunther, the Supreme Court wrestled with the “narrow question” of the import of an amendment to Title VII.

. The amendment could have been read solely as incorporating the Equal Pay Act’s affirmative defenses into Title VII. Or it could have been read to also incorporate the Equal Pay Act’s “equal” work standard into Title VII. The Court adopted the narrower reading—the amendment only incorporated the Equal Pay Act’s affirmative defenses. Relevant here, the Court was careful to explicitly note that it was “not called upon in this case to decide whether respondents have stated a prima facie 9 USCA4 Appeal: 21-2328 Doc: 29 Filed: 10/19/2023 Pg: 10 of 16

But those other employees didn’t perform jobs similar to Wiese either. See Spencer,

. They all held different positions. See J.A. 1352 (Petrick worked as

Creative Director and another employee, Liz McDade, worked as Social Media

Coordinator). The sum here is not more than its parts. What Noonan cannot show by

comparing herself to one dissimilar male employee, she can’t show by comparing that same

male co-worker to two other dissimilar employees either. 6 So Noonan has not satisfied her

burden of raising an inference of sex discrimination.

B. Retaliation

Noonan claims that she was retaliated against for raising concerns about sex-based

wage discrimination, in violation of Title VII and the Equal Pay Act. She alleges three

retaliatory acts: (1) Petrick’s threat to fire her; (2) Consolidated Shoe’s reduction in her job

responsibilities, particularly doing fewer photoshoots; and (3) the company’s declining to

provide a letter of recommendation after letting her go.

To establish a prima facie case of retaliation, Noonan must prove: “(i) that she

engaged in protected activity, (ii) that her employer took adverse action against her, and

(iii) that a causal relationship existed between the protected activity and the adverse

employment activity.” Sempowich v. Tactile Sys. Tech., Inc.,

(4th Cir.

case of sex discrimination under Title VII.”

at 166 n.8. Yet Noonan relies on Gunther for the very reason that the Court disclaimed. 6 Because Noonan fails to meet Title VII’s similarity requirement for comparison, she necessarily fails to meet the Equal Pay Act’s higher bar to show the comparable jobs were equal. See Spencer,

(noting that Title VII’s “similarity” requirement demands less of plaintiffs than the Equal Pay Act’s “equality” requirement). 10 USCA4 Appeal: 21-2328 Doc: 29 Filed: 10/19/2023 Pg: 11 of 16

2021) (cleaned up). The parties agree that Noonan engaged in protected activity when,

armed with Wiese’s paystub, she confronted Petrick with accusations of sex-based wage

discrimination. Still, she hasn’t pointed to evidence from which a reasonable jury could

conclude she has met all three elements for any of the alleged retaliatory conduct because

none of the actions she complains about were “both material and undertaken because of

her complaints about salary equity.” Spencer,

.

First, the threat to fire her. During the conversation in which Noonan raised her

concerns about wage discrimination, Petrick inaccurately told Noonan that knowing a co-

worker’s pay was a fireable offense under Consolidated Shoe’s employee handbook.

Noonan calls this a threat to fire her. 7 While threats come in many shapes and sizes, it is

far from clear that Petrick’s statement amounted to a threat. But even assuming Petrick’s

comment was in fact a threat, it is not sufficiently adverse in this context to be actionable.

7 We assume that Noonan can show causation for this retaliatory conduct. But it isn’t obvious. True, there is a tight temporal proximity between the protected activity and the alleged retaliatory conduct—it was in the same conversation. And temporal proximity alone can establish causation. See Sempowich,

. Yet the threat itself targeted Noonan’s knowledge of another employee’s salary—a violation of Consolidated Shoe’s policy—not Noonan’s protected activity. Compare J.A. 1299 (Petrick’s statement “that it was a fireable offense to know another employee’s salary”), with Rivera v. Rochester Genesee Reg. Trans. Auth.,

(2d Cir. 2012) (allowing a retaliation claim to survive summary judgment where the boss threatened that the employee “could lose his job for filing complaints of discrimination”). What’s more, following Noonan’s conversation with Petrick, Consolidated Shoe launched an investigation of Noonan’s allegation of sex discrimination. This suggests that the threat truly was aimed at Noonan’s knowledge of others’ salaries, not at the underlying allegation of sex discrimination. In other words, there is reason to think that if Consolidated Shoe did not have the policy, then Petrick would not have threatened to fire Noonan in this conversation. But with evidence pointing in both directions, we construe the evidence of whether the threat was because of Noonan’s protected activity in Noonan’s favor. 11 USCA4 Appeal: 21-2328 Doc: 29 Filed: 10/19/2023 Pg: 12 of 16

How adverse must retaliatory conduct be? It must be “materially adverse,” which

means the plaintiff must show “significant” harm that “could well dissuade a reasonable

worker from making or supporting a charge of discrimination.” Israelitt v. Enter. Servs.

LLC,

(4th Cir. 2023) (quoting Burlington N. & Santa Fe Ry. Co. v. White,

(2006)). In making this determination, context matters. As the Court

explained in Burlington Northern, a schedule change “may make little difference to many

workers but may matter enormously to a young mother with school age children”; and not

including an employee on a group lunch may be a “nonactionable petty slight,” but

“excluding an employee from a weekly training lunch that contributes significantly to the

employee’s professional advancement might” be actionable.

. Considering

the context of Petrick’s one-off statement to Noonan, no reasonable juror would conclude

that the threat was a significant harm that would have dissuaded a reasonable worker from

making a charge of discrimination.

There were no “special circumstances . . . such as a unique interpersonal . . .

relationship between the supervisor and employee” for us to determine that this “unrealized

threat of termination” was sufficiently adverse. See Dick v. Phone Directories Co.,

(10th Cir. 2005). Instead, the circumstances show the opposite. First,

Petrick apologized for her statement. Second, Consolidated Shoe’s Human Resources

Director supported Noonan in the wake of the threat. See Hellman v. Weisberg,

(9th Cir. 2009) (“Especially given [the boss’s] otherwise supportive

attitude, his reprimand did not rise to the level of adverse employment action.”). And third,

instead of realizing or repeating the threat, the company—at the CEO’s direction—

12 USCA4 Appeal: 21-2328 Doc: 29 Filed: 10/19/2023 Pg: 13 of 16

conducted a full investigation to assuage Noonan of her concerns. In that context, Petrick’s

isolated statement, even if understood as a threat, would not dissuade a reasonable worker

from bringing a charge of discrimination.

Second, Noonan asserts that Consolidated Shoe “hollowed out” her job

responsibilities after the conversation. In particular, she claims that Consolidated Shoe

reduced her photography, video, and email marketing responsibilities while assigning her

more writing projects. Such responsibility-stripping can qualify as adverse action. See

James v. Booz-Allen & Hamilton, Inc.,

(4th Cir. 2004). Of course, the

action must still be “materially adverse.” Burlington N.,

. And this is an

objective standard, adopting the lens of a “reasonable employee.”

Here, Noonan says that the responsibility-stripping was materially adverse because

Consolidated Shoe took away her job’s most prestigious and enjoyable aspects. But the

record does not support the claim that her reduced responsibilities were objectively more

desirable or prestigious than her increased responsibilities. Unlike in Burlington, Noonan

does not present evidence that her increased writing responsibilities were “more arduous

and dirtier” than her reduced photography responsibilities. See

. Nor does she

show that her older responsibilities required more qualifications than her newer

responsibilities (and were thus more prestigious), nor that they were “objectively

considered . . . better” than her newer duties. See

Noonan similarly presents no

evidence that her new responsibilities offered fewer “opportunities for promotion or

professional development” or that she was demoted either in title or in compensation. See

James,

.

13 USCA4 Appeal: 21-2328 Doc: 29 Filed: 10/19/2023 Pg: 14 of 16

Though Noonan tries to establish prestige by saying that her new title of “Sr.

Photographer” shows the prestige in photography, her own evidence undercuts that

conclusion. She herself acknowledges that she had been doing photography long before

she attained her new title. And she notes that an intern, not another senior employee, began

to perform many of her old photography responsibilities. Since photography thus often

falls within the province of low-level employees (like pre-promotion Noonan and the

current intern), Noonan has not produced evidence from which a reasonable jury could

conclude that Consolidated Shoe considered photography to be an objectively

“prestigious” activity.

Similarly, the fact that Noonan’s new balance of responsibilities was subjectively

“less appealing . . . in and of itself does not constitute adverse employment action.” See

And this makes sense in light of the Supreme Court’s admonition that this must be an

objective inquiry. See Burlington N.,

. Instead, Noonan must show that her

new responsibilities are objectively worse than her old ones, such as when an employer

replaces “easier or more agreeable” responsibilities with “more arduous duties.”

.

Yet Noonan points us to no evidence showing that photography is somehow objectively

better than writing. A jury would be left to speculate regarding that question. All she

asserts is that she “really enjoyed” photography. J.A. 315. Without more, that does not

create a genuine dispute of material fact as to material adversity.

Third, Consolidated Shoe did not provide Noonan a letter of recommendation after

letting her go. As the district court recognized, there’s a simple explanation for why: She

didn’t agree to the severance package, which included the recommendation letter as a perk.

14 USCA4 Appeal: 21-2328 Doc: 29 Filed: 10/19/2023 Pg: 15 of 16

In contrast, Wiese agreed to the severance package, and, in turn, received a letter of

recommendation. But Noonan attempts to revive this act as retaliatory by claiming that,

separate from her declining the severance package, she reached out to Christmas and asked

for a letter of recommendation. And in her brief, she argues that Christmas had agreed to

provide such a letter before company executives pressured her into not providing one. But

even viewing the evidence in the light most favorable to Noonan, it does not show what

she claims it does. Noonan’s evidence does show that Christmas originally agreed to write

her a letter. But the undisputed record reveals that Christmas agreed under the mistaken

belief that Noonan had signed the severance agreement. And when she found out that

Noonan had refused the agreement, she made a personal decision not to write such a letter

because she didn’t “feel[] comfortable doing one.” J.A. 661. Consolidated Shoe, on the

other hand, would have had no issue with Christmas writing Noonan a letter of

recommendation had she decided to write one. The company, thus, took no action here,

much less retaliatory action.

Accordingly, even assuming that withholding a letter of recommendation would

dissuade a reasonable worker from engaging in protected activity, no reasonable jury could

find the necessary “causal link between the two events.” Boyer-Liberto v. Fontainebleau

Corp.,

(4th Cir. 2015). 8

8 A retaliation claim based upon an employer’s failure to furnish a favorable recommendation letter may put the employer in a practical bind, at least where the employee has given some forewarning of his or her intention to file a discrimination complaint or has already done so. If, on the one hand, the employer provides a tepid recommendation or mentions the employee’s discrimination claim, then the employee may use that as evidence of retaliation. See Rutherford v. Am. Bank of Com.,

, 15 USCA4 Appeal: 21-2328 Doc: 29 Filed: 10/19/2023 Pg: 16 of 16

* * *

To survive summary judgment, Noonan must produce evidence that would allow a

jury to find that she was discriminated against in violation of Title VII. But what Noonan

provided would not permit a reasonable jury to find for her. And she did not suffer any

materially adverse action because she raised concerns about the alleged sex discrimination.

Accordingly, the district court’s grant of summary judgment to Consolidated Shoe is

AFFIRMED.

1163–65 (10th Cir. 1977). If, on the other hand, the employer provides an artificially positive recommendation to avoid such an outcome, then it could foreclose a potential defense in the forthcoming or ongoing litigation; the letter of recommendation will be plaintiff’s “Exhibit A” that the alleged adverse employment action was not the result of poor job performance. See Tomanovich v. Indianapolis,

(7th Cir. 2006). Here we need not address the issue because, as explained above, the denial of the recommendation letter was Christmas’s decision, not Consolidated Shoe’s decision. 16