Wells v. Gates

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 08-1358

MICHAEL E. WELLS,

Plaintiff - Appellant,

v.

ROBERT M. GATES, Secretary of Defense,

Defendant - Appellee.

Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Roger W. Titus, District Judge. (8:07-
cv-00619-RWT)

Argued: March 26, 2009 Decided: July 10, 2009

Before MOTZ and AGEE, Circuit Judges, and Thomas D. SCHROEDER,
United States District Judge for the Middle District of North
Carolina, sitting by designation.

Affirmed by unpublished per curiam opinion.

ARGUED: Lenore Cooper Garon, GEBHARDT & ASSOCIATES, LLP,
Washington, D.C., for Appellant. Jason Daniel Medinger, OFFICE
OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for
Appellee. ON BRIEF: Myrrel C. Hendricks, GEBHARDT & ASSOCIATES,
LLP, Washington, D.C., for Appellant. Rod J. Rosenstein, United
States Attorney, Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Michael E. Wells appeals the district court’s grant of

summary judgment in favor of the Department of Defense (“DOD”)

on his claims of retaliation, in violation of Title VII of the

Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e to

2000e-17 (“Title VII”), and hostile work environment, in

violation of the Age Discrimination in Employment Act of 1967,

as amended, 29 U.S.C. §§ 621-34 (“ADEA”). For the reasons

explained below, we affirm.

I.

Wells was an Industrial Security Specialist with the DOD’s

Defense Security Service (“DSS”) for almost sixteen and one-half

years, until his retirement in 2008. In that position, he

performed various national security management functions, such

as inspecting defense contractor facilities and operations for

compliance with federal regulations on the handling of

classified documents. Wells was born on February 20, 1948,

putting him at age fifty-seven during most of the conduct

relevant to his claims.

From 2001 through 2008, Wells’ supervisor was Field Office

Chief Horace Bearzi. By all accounts, Wells and Bearzi had what

can best be described as a less than cordial working

relationship. Although Wells and Bearzi had been at loggerheads

2
for years, the conduct giving rise to Wells’ claims began in

early 2005. Starting in March 2005, Bearzi repeatedly ordered

Wells to stop using the modifier “Senior” with respect to his

title “Industrial Security Specialist” on the grounds that it

was no longer an officially recognized position. Wells failed

to comply. On August 8, 2005, after receiving the approval of

his supervisor, representatives of the DSS Office of Human

Resources and Office of General Counsel, and upper management,

Bearzi issued a Letter of Reprimand (“LOR”) to address Wells’

continued use of the nonexistent title and his signing of

official letters requiring Bearzi’s signature. On August 31,

2005, Bearzi conducted Wells’ mid-year performance review and

noted that he had nine “seriously overdue” security assessment

reports, including some that were 120 days late, even though

such reports were to be completed within thirty days of the

inspection.

On September 1, 2005, Bearzi issued Wells a Letter of

Instruction (“LOI”), again with the concurrence of his

supervisor, representatives of the Office of Human Resources and

Office of General Counsel, and upper management. In the LOI,

Bearzi specifically identified the overdue reports and cited

Wells for improperly storing national security files at home.

To improve Wells’ performance and ensure national security,

Bearzi (1) required Wells to return the files and forbade him

3
from routinely retaining files at home; (2) prohibited him from

writing reports, scheduling activities, or performing any other

duties at home; (3) revoked his authority to park a government-

owned vehicle at home; (4) instructed Wells to brief Bearzi at

the beginning of each day as to his planned activities and at

the end of each day as to his accomplished activities; and (5)

withdrew approval of Wells’ compressed work schedule. On that

same day, Wells requested annual leave for the following three

weeks, which Bearzi approved.

The next day, September 2, 2005, Wells contacted a

counselor of the DSS Office of Diversity Management – its Office

of Equal Employment Opportunity (“EEO”). On September 21, he

went out on sick leave, and approximately two weeks later he

canceled other previously scheduled leave (for an annual hunting

trip) because, he said, a check-up revealed potentially serious

health issues. He filed a formal EEO complaint on September 30,

2005, alleging that the LOR and LOI were retaliatory and

claiming that he was subject to a hostile work environment. 1

When his annual leave was about to expire, Wells requested

additional sick leave through December 2, 2005. He based his

1
The EEO summarily rejected the retaliation claim because
Wells had not participated in prior protected conduct and, after
a lengthy investigation, denied the hostile work environment
claim as well.

4
back-to-back requests on vague references to “[p]hysician

imposed medical leave” and cryptic doctor’s notes referring to

his “hypertension, diabetes, hypercholesterolemia, [and]

obesity.” (J.A. 182, 184-87, 191-92.) Bearzi approved each of

the requests. Though allegedly unable to work, however, Wells

was healthy enough to testify at length on behalf of a co-worker

at both an EEOC deposition and a hearing and appeared

unannounced for a departmental meeting at work during which,

according to Bearzi, he said he was “feeling fine.” These

developments contributed to Bearzi’s growing suspicions that

Wells was malingering.

When Wells requested yet again that his sick leave be

extended, this time beyond December 13, 2005, 2 and through

January 20, 2006, Bearzi consulted the Office of Human Resources

and Office of General Counsel. Based on their advice, he asked

Wells to provide further documentation by December 20, 2005, to

substantiate his medical condition. Bearzi noted that Wells had

already missed seventy-two calendar days of work, had not

submitted adequate medical documentation, and had reported

unbidden to work-related activities on three separate occasions.

2
Wells requested annual leave from December 5, 2005,
through December 13, 2005, which was approved by Bearzi. Wells
claimed that this annual leave was for medical reasons.

5
Bearzi cautioned Wells that he could grant no further sick leave

without the requested documentation.

Even though Bearzi reminded Wells of the looming deadline

through e-mails and a telephone call, Wells failed to provide

any documentation. Accordingly, by letter of December 22, 2005,

Bearzi denied Wells any further sick leave.

On December 30, 2005, Wells belatedly submitted further

medical documentation and requested sick leave from December 29,

2005, to January 31, 2006. Unfortunately, Wells’ doctor’s note

stated only that he “[h]as been ill and unable to work from

12/29/05 to 1/31/06.” (J.A. 212.) Based on the advice of the

Office of Human Resources and Office of General Counsel, Bearzi

again denied the sick leave request and asked for further

medical documentation. On January 27, 2006, Wells submitted a

doctor’s note indicating that he was suffering from intestinal

bleeding, which Bearzi relied on to grant sick leave as of

February 1, 2006.

On January 24, 2006, Wells again contacted an EEO

counselor. He filed a formal complaint on March 14, 2006,

alleging that he suffered disparate treatment, retaliation, and

a hostile work environment. After an extensive investigation,

the EEO concluded that Bearzi’s request for further medical

documentation and denial of sick leave were not related to

Wells’ age or any protected conduct.

6
 After more than ten months of continuous leave, dating back

to early September 2005, Wells returned to work in July 2006.

Wells filed the present case on March 12, 2007. His

complaint alleges that the DOD violated the ADEA and Title VII

when, based on his age and in retaliation for his prior

protected EEO activities, it subjected him to (1) retaliation

and disparate treatment; (2) a hostile work environment; and (3)

adverse personnel actions. In lieu of answering, the Government

moved to dismiss, or in the alternative, for summary judgment.

Following several months of briefing and a hearing, the district

court considered all matters of record, including several

hundred pages of the extensive EEO files, denied Wells’ request

for additional discovery on the grounds he failed to articulate

any specific need, and granted the Government summary judgment

on all claims.

Wells timely brings this appeal. We exercise jurisdiction

pursuant to 28 U.S.C. § 1291.

II.

Wells challenges the district court’s grant of summary

judgment on his claims for retaliation and hostile work

7
environment. 3 We review the grant of summary judgment de novo,

“viewing the facts and inferences drawn therefrom in the light

most favorable to the non-moving party.” Baqir v. Principi, 434

F.3d 733, 742 (4th Cir. 2006). Summary judgment is appropriate

only if “there is no genuine issue as to any material fact and .

. . the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(c).

A.

We address first Wells’ retaliation claim. 4 In the absence

of direct evidence, we analyze a Title VII retaliation claim

under the burden-shifting framework set forth in McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). Price v.

Thompson, 380 F.3d 209, 212 (4th Cir. 2004). To establish a

prima facie case of retaliation, a plaintiff must demonstrate

that (1) he engaged in protected conduct; (2) his employer took

3
The district court held that the disparate treatment claim
lacked merit because Wells was not subjected to an adverse
employment action and offered no specific evidence that
similarly situated employees had received better treatment.
Wells waives this claim on appeal inasmuch as he only mentions
the term “disparate treatment” in the statement of the issues in
his initial brief and never follows up with any argument. Fed.
R. App. P. 28(a)(9)(A) (requiring the argument section of an
opening brief to contain the “appellant’s contentions and the
reasons for them”); see Edwards v. City of Goldsboro, 178 F.3d
231, 241 n.6 (4th Cir. 1999).
4
The Government does not dispute, and we therefore assume,
that a federal employee may pursue a retaliation claim under
Title VII. Baqir, 434 F.3d at 747 n.16.

8
an adverse employment action against him; and (3) the protected

conduct was causally connected to the adverse action. Ziskie v.

Mineta, 547 F.3d 220, 229 (4th Cir. 2008). To satisfy the

second element, “a plaintiff must show that a reasonable

employee would have found the challenged action materially

adverse, which in this context means it well might have

dissuaded a reasonable worker from making or supporting a charge

of discrimination.” Burlington N. & Santa Fe Ry. Co. v. White,

548 U.S. 53, 68 (2006) (internal quotation marks and citation

omitted). 5 If the plaintiff establishes a prima facie case, the

burden shifts to the employer to demonstrate a legitimate non-

retaliatory reason for the adverse employment action. Baqir,

434 F.3d at 747. If the employer does so, the plaintiff must

prove that this reason was a pretext for retaliation. Id.

5
The Government objected in the district court to the
application of the Burlington Northern standard to a Title VII
retaliation case involving a federal employee. Although this
court has applied this standard to federal employees in several
unreported cases, e.g., Caldwell v. Johnson, 289 F. App’x 579,
591 n.13, 592 (4th Cir. 2008) (citing cases), the issue has not
been reached in a reported case. Ziskie, 547 F.3d at 229.
Because the Government has not renewed its objection on appeal,
we assume that the Burlington Northern standard applies for
purposes of this appeal.

9
 1.

Wells claims he created a genuine issue of material fact as

to the second element of the prima facie case. 6 Although his

briefing is less than clear, he appears to argue that he

suffered materially adverse employment actions when Bearzi (a)

requested further documentation of his medical condition, (b)

refused to lift his LOI restrictions, and (c) denied a portion

of his requested sick leave.

a.

Wells contends that Bearzi’s December 6, 2005, letter

requesting further medical documentation constituted a

materially adverse employment action. The district court held

that this request was not a materially adverse employment action

because it would not have dissuaded a reasonable employee from

filing an EEO complaint. The district court also noted that

Wells, in fact, was not inhibited and subsequently filed another

EEO complaint.

A materially adverse employment action is one that “well

might have dissuaded a reasonable worker” from engaging in

protected conduct. Burlington N., 548 U.S. at 68 (internal

quotation marks and citation omitted). An employer’s action is

not materially adverse, however, if it amounts to “petty slights

6
For purposes of this appeal, we assume that Wells has met
the first and third elements of the prima facie case.

10
or minor annoyances that often take place at work and that all

employees experience.” 7 Id. at 68. To make that assessment, we

look to the context of the claimed actions. Id. at 69.

We agree with the district court that Bearzi’s request for

further medical documentation was not a materially adverse

employment action. Bearzi’s letter simply advised Wells to

obtain appropriate medical documentation from his physician

before any additional medical leave could be approved. Standing

alone, this request did not impose any disciplinary action on

Wells or otherwise have a tangible employment consequence.

Chaple v. Johnson, 453 F. Supp. 2d 63, 72-73 (D.D.C. 2006)

(holding that “speculation of a future bad act” does not support

a Title VII retaliation claim). Such a request would not

dissuade a reasonable worker from participating in protected

conduct. Moreover, the mere fact that Wells participated in the

protected conduct of testifying at EEOC proceedings and filing

an EEO complaint does not immunize him from a reasonable request

by his employer.

b.

Wells claims next that he suffered a materially adverse

employment action when Bearzi refused to lift the restrictions

7
This anti-retaliation provision “protects an individual .
. . from retaliation that produces an injury or harm.”
Burlington N., 548 U.S. at 67.

11
previously imposed in the LOI. Wells concedes that the initial

imposition of these restrictions predated his participation in

protected conduct and could not serve as the basis of a Title

VII retaliation claim. He claims, however, that he eventually

satisfied the terms of the LOI yet the restrictions remained in

place until he retired two years later.

The record reflects that Bearzi imposed the LOI

restrictions to enable Wells to finish significantly overdue

work, prohibit him from storing national security files at home,

and ensure that he completed his assignments on time. Nothing

in the LOI indicates that Bearzi would lift the restrictions

when the overdue reports were completed or after a fixed period

of time, such as the end of the fiscal year, as Wells argues.

Bearzi instead stated that he intended to lift the LOI when

Wells cleared his backlog and remained current. Wells concedes

that his reports were unfinished when he returned from sick

leave and identifies nothing in the record indicating that he

ever completed them. Thus, the district court correctly

concluded that Bearzi’s refusal to lift these restrictions did

not constitute a materially adverse employment action.

c.

Wells next argues that Bearzi’s denial of his request for

sick leave from December 13, 2005, through January 31, 2006,

constituted a materially adverse employment action. Although

12
the district court acknowledged that Wells raised the denial of

sick leave as a retaliatory act, it concluded, without

specifically addressing the argument, that no materially adverse

employment action existed.

Wells claims that he was entitled to the grant of sick

leave for this six-week period. He asserts that he initially

provided sufficient documentation on December 5, 2005, pointing

to an e-mail, leave request form, and doctor’s note, which

Bearzi denied. Wells also argues that he provided further

documentation in his sick leave request of December 30, 2005,

which Bearzi likewise denied. This six-week period included the

Christmas holidays and ultimately resulted in the loss of more

than $8,000 in gross income, which Wells otherwise would have

been entitled to receive as compensation. The Government argues

that the denial was not a materially adverse employment action

because it did not dissuade Wells from participating in

protected conduct after some of the alleged retaliatory acts.

In Burlington Northern, the Court held that the anti-

retaliation provision “protects an individual . . . from

retaliation that produces an injury or harm.” 548 U.S. at 67.

Loss of compensation could qualify as such an injury or harm.

Id. at 73. Although “the fact that an employee continues to be

undeterred in his or her pursuit of a remedy . . . may shed

light as to whether the actions are sufficiently material and

13
adverse to be actionable,” Somoza v. Univ. of Denver, 513 F.3d

1206, 1214 (10th Cir. 2008), the court ultimately must apply an

objective standard. Burlington N., 548 U.S. at 68, 69; Steele

v. Schafer, 535 F.3d 689, 696 (D.C. Cir. 2008) (stating that the

“materially adverse” standard does not require consideration of

the employee’s “asserted imperviousness to acts of

retaliation”).

Based on the financial impact, we cannot say that a

reasonable worker would not be dissuaded from engaging in

protected conduct by the loss of this compensation from denial

of sick leave. Burlington N., 548 U.S. at 73. To this extent,

we disagree with the conclusion of the district court. For the

reasons that follow, however, it is not dispositive, and we

agree with the district court’s ultimate decision.

2.

We find that the Government has demonstrated a legitimate,

non-retaliatory reason for Bearzi’s actions. An employer may

enforce generally applicable employment policies against its

employees without creating a cause of action for retaliation.

Niswander v. Cincinnati Ins. Co., 529 F.3d 714, 719, 728-29 (6th

Cir. 2008); Hervey v. County of Koochiching, 527 F.3d 711, 725

(8th Cir. 2008); McCann v. Tillman, 526 F.3d 1370, 1376 (11th

Cir. 2008); Gates v. Caterpillar, Inc., 513 F.3d 680, 686-87

(7th Cir. 2008); Joseph v. Leavitt, 465 F.3d 87, 91 (2d Cir.

14
2006); see also Valles-Hall v. Ctr. for Nonprofit Advancement,

481 F. Supp. 2d 118, 155 (D.D.C. 2007) (denying Title VII

retaliation claim where employee failed to provide further

medical documentation to support a sick leave request in

accordance with company policy); Chaple, 453 F. Supp. 2d at 72-

73 (same).

At times pertinent here, the generally applicable

regulation on sick leave documentation was codified at 5 C.F.R.

§ 630.403 (2005). 8 That provision allows an agency to “grant

sick leave only when supported by administratively acceptable

evidence.” 5 C.F.R. § 630.403(a). Although an agency “may

consider an employee’s certification . . . as administratively

acceptable evidence,” the agency “may also require a medical

certificate or other administratively acceptable evidence as to

the reason for an absence” that exceeds three working days. Id.

Bearzi complied with the generally applicable regulations

governing sick leave requests. Upon the advice of the Office of

Human Resources and the Office of General Counsel, Bearzi

8
Bearzi’s December 6, 2005, letter referred to 5 C.F.R.,
part 339, as the basis for his request for further medical
documentation. Those regulations more specifically concern an
individual’s medical qualifications and physical well-being.
E.g., 5 C.F.R. § 339.301(b) (authorizing agencies to require a
medical examination for positions that have “medical standards
or physical requirements”). It is apparent, however, that
Bearzi’s error was inadvertent, and his request for additional
documentation was well-founded on this record for the reasons
infra.

15
requested further medical documentation from Wells in the

December 6, 2005, letter. Bearzi directed Wells to have his

physician complete the attached Form WH-380 to verify his

medical condition and its impact on his ability to perform the

essential duties of his position. Bearzi requested this

documentation by December 20, 2005. He also reminded Wells

several times to comply with the request. Yet by December 21,

Wells had neither submitted the requested information nor

provided the form to his physician. Only after this did Bearzi

deny further leave. Accordingly, when viewing the facts in the

light most favorable to Wells, it is apparent that the district

court properly held that the Government established a

legitimate, non-discriminatory basis for Bearzi’s actions.

3.

Wells argues that Bearzi’s basis for denying sick leave was

merely pretextual. This is demonstrated, Wells claims, by

Bearzi’s refusal to grant sick leave even after the requested

medical documentation was provided. The problem with Wells’

argument is that he did not provide his e-mail, leave request

form, and doctor’s note, until December 30, 2005. This was ten

days after the stated deadline and eight days after the denial

of his sick leave request. Moreover, Wells failed to submit the

16
documentation on Form WH-380, as required, 9 or to demonstrate

that he provided all of the information requested by Bearzi.

Wells next argues that Bearzi’s ultimate approval of his

sick leave as of February 1, 2006, demonstrates that the prior

denial was pretextual. 10 Although Wells claims that he did not

provide any different medical documentation in the approved sick

leave request of January 27, 2006, than he had in the previous

denied requests, Bearzi stated that the approved request

included a doctor’s note indicating that Wells was suffering

from intestinal bleeding. The record does not contain the leave

requests in question, foreclosing any comparison of the

documentation. Thus, Wells has not shown that Bearzi knew of

9
Wells argues that Form WH-380 was inapplicable to his
situation. Although the instructions to Form WH-380 indicate
that it is “optional” and is used for requests under the Family
and Medical Leave Act, nothing in the record indicates that it
could not be used to solicit information for sick leave requests
as well. Indeed, the record indicates that DOD agencies, such
as the DSS, commonly use Form WH-380 to request information
about an employee’s medical condition. Any suggestion of
pretext is further dispelled by the fact that Bearzi’s request
that Wells use Form WH-380 was made upon the advice of the
Office of Human Resources.
10
On a related note, Wells claims that Bearzi’s change of
his status from “absent without leave” (“AWOL”) to “leave
without pay” (“LWOP”) demonstrates pretext. Wells states that
this alteration implies that Bearzi could not justify AWOL
status. However, Wells fails to explain how the initial AWOL
status was unjustified or to identify how the change of his
classification to a more favorable status could be evidence of
pretext.

17
the extent of the medical condition prior to the end of January

or that the prior sick leave requests contained adequate medical

documentation.

In addition, the record contains no evidence that Bearzi

failed to apply the generally applicable regulation to request

further medical documentation from similarly situated employees

who had requested extended sick leave. To the contrary, Bearzi

had previously required another employee to provide further

medical documentation to support a sick leave request. For

these reasons, we conclude that Wells failed to demonstrate

evidence of pretext, and the district court properly granted

summary judgment on Wells’ retaliation claim.

B.

We now turn to Wells’ claim that he was subjected to a

hostile work environment based on his age, in violation of the

ADEA, 11 and in retaliation for his protected conduct, in

violation of Title VII. The district court held that the

hostile work environment claim lacked merit because Wells

offered no evidence that the alleged harassment was based on his

11
The Government does not dispute that Wells may bring a
hostile work environment claim under the ADEA. “[W]e have
previously assumed, without deciding, that a hostile work
environment claim is generally cognizable under the ADEA for
plaintiffs age forty or older.” Baqir, 434 F.3d at 746 n.14
(citing Burns v. AAF-McQuay, Inc., 166 F.3d 292, 294 (4th Cir.
1999); Causey v. Balog, 162 F.3d 795, 801 n.2 (4th Cir. 1998)).

18
age or that it was severe or pervasive. We address each basis -

age and retaliation - separately.

1.

To make out a hostile work environment claim under the

ADEA, a plaintiff must adduce evidence that “(1) he experienced

unwelcome harassment; (2) the harassment was based on his . . .

age; (3) the harassment was sufficiently severe or pervasive to

alter the conditions of his employment and to create an abusive

atmosphere; and (4) there is some basis for imposing liability

on the employer.” Baqir, 434 F.3d at 745-46 (citing Bass v.

E.I. DuPont de Nemours & Co., 324 F.3d 761, 765 (4th Cir.

2003)).

Wells grounds his age-based harassment claim on the

following actions: Bearzi’s instruction not to use the title

“Senior Industrial Security Specialist;” issuance of an LOR

charging “blatant insubordination;” imposition of the LOI

restrictions; and posting on a bulletin board in a Human

Resources employee’s office that Wells had filed a grievance

regarding those restrictions. 12 Wells argues that Bearzi did not

impose such restrictions on similarly situated employees who

12
Although Wells also argues that the denial of his sick
leave contributed to the hostile work environment, he claims
that it was retaliatory and not based on age.

19
were not over the age of forty and, thus, not within the

protected class under the ADEA.

We find that, no matter how these actions are viewed,

Wells’ claim fails because he never demonstrates a genuine issue

of material fact that age was a factor in the alleged

harassment. “[C]onclusory statements, without specific

evidentiary support, cannot support an actionable claim for

harassment.” Causey, 162 F.3d at 802. Wells never alleges, nor

is there any evidence, that Bearzi made any age-related

comments. Wells also fails to identify any evidence that Bearzi

accorded different treatment to similarly situated employees who

were not within the protected class. Although Wells claims that

he presented evidence that younger co-workers were allowed to

use the “Senior Industrial Security Specialist” title and were

not subject to the same restrictions, nothing in the record

identifies even one co-worker under Bearzi’s supervision who was

under the age of forty, employed as an Industrial Security

Specialist at pay grade GS-12, guilty of delinquent reports even

remotely as overdue, and involved in as many episodes of

insubordination. Thus, the district court properly granted

summary judgment on Wells’ hostile work environment claim based

on age.

20
 2.

To make out a hostile work environment claim based on

retaliation under Title VII, a plaintiff must show that “(1) he

experienced unwelcome harassment; (2) the harassment was . . .

[in retaliation for protected conduct]; (3) the harassment was

sufficiently severe or pervasive to alter the conditions of his

employment and to create an abusive atmosphere; and (4) there is

some basis for imposing liability on the employer.” Baqir, 434

F.3d at 745-46 (citing Bass, 324 F.3d at 765); see Von Gunten v.

Maryland, 243 F.3d 858, 869-70 (4th Cir. 2001), overruled on

other grounds by Burlington N. & Santa Fe Ry. Co. v. White, 548

U.S. 53 (2006).

Wells alleges that he was subjected to unwelcome harassment

in retaliation for his protected conduct. He points again to

Bearzi’s denial of the requested sick leave and refusal to lift

the LOI restrictions. 13

Even if this alleged unwelcome harassment could be said to

have been in retaliation for protected conduct, Wells fails to

show that it was severe or pervasive. To meet this third

element of the prima facie case, the harassment must be severe

13
The Government argues that the imposition of the LOR and
LOI restrictions were not retaliatory actions for purposes of
the hostile work environment claim. Although Wells alleges
other unwelcome harassment based on his age, he relies on the
LOR and LOI only to the extent of Bearzi’s refusal to lift the
restrictions after Wells returned from sick leave.

21
or pervasive enough to create a subjectively and objectively

hostile or abusive work environment. Harris v. Forklift Sys.,

Inc., 510 U.S. 17, 21-22 (1993); Von Gunten, 243 F.3d at 870.

We examine all of the circumstances to determine whether the

work environment was objectively hostile. These circumstances

“may include the frequency of the . . . [retaliatory] conduct;

its severity; whether it is physically threatening or

humiliating, or a mere offensive utterance; and whether it

unreasonably interferes with an employee’s work performance.”

Harris, 510 U.S. at 23. The harassment must be extreme.

Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998).

Wells may have subjectively perceived his work environment

to be hostile, but he fails to demonstrate that the alleged

harassment was objectively hostile and abusive. Bearzi denied

Wells’ sick leave request under the generally applicable

regulations governing such requests and, in doing so, relied on

the advice of the Office of Human Resources and the Office of

General Counsel to request further medical documentation.

Bearzi also reminded Wells many times to provide the

information. When Wells failed to comply by the deadline and

subsequently refused to do so, Bearzi again relied on the advice

of the Office of Human Resources and the Office of General

Counsel to deny the sick leave request. Thus, the denial was

22
the direct result of Wells’ inaction and did not reflect an

objectively hostile atmosphere.

Wells also fails to show that the refusal to lift the LOI

restrictions was objectively hostile and abusive. Federal

courts “do[] not sit as a kind of super-personnel department

weighing the prudence of employment decisions made by

[employers] charged with employment discrimination.” DeJarnette

v. Corning Inc., 133 F.3d 293, 299 (4th Cir. 1998). Bearzi

imposed the restrictions to enable Wells to catch up with

seriously overdue work, prohibit him from storing national

security files at home, and ensure that he completed his

assignments on time. The record contains no evidence that these

deficiencies were ever remedied. Based on Wells’ documented

shortcomings, the refusal to lift the LOI restrictions did not

“unreasonably interfere” with his work performance.

Accordingly, the district court properly granted summary

judgment on Wells’ hostile work environment claim based on

retaliation.

III.

Wells argues finally that the district court prematurely

granted summary judgment before allowing him the opportunity to

conduct discovery. We review the district court’s refusal to

allow discovery prior to the entry of summary judgment for abuse

23
of discretion. Harrods Ltd. v. Sixty Internet Domain Names, 302

F.3d 214, 244 (4th Cir. 2002). We will not reverse the district

court “unless there is a clear abuse of discretion or[] unless

there is a real possibility the party was prejudiced by the

denial of the extension.” Ingle v. Yelton, 439 F.3d 191, 195

(4th Cir. 2006) (citation omitted).

Federal Rule of Civil Procedure 56(f) authorizes a court to

refuse summary judgment “where the nonmoving party has not had

the opportunity to discover information that is essential to his

opposition.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250

n.5 (1986). To avail itself of this relief, the nonmoving party

must set forth specific reasons for discovery in an affidavit,

Fed. R. Civ. P. 56(f), and “may not simply assert in its brief

that discovery was necessary.” Nguyen v. CNA Corp., 44 F.3d

234, 242 (4th Cir. 1995) (internal quotation marks and citation

omitted). Although “the failure to file an affidavit under Rule

56(f) is itself sufficient grounds to reject a claim that the

opportunity for discovery was inadequate,” Evans v. Techs.

Applications & Serv. Co., 80 F.3d 954, 961 (4th Cir. 1996)

(internal quotation marks and citation omitted), a Rule 56(f)

affidavit may not be necessary under certain circumstances.

Harrods, 302 F.3d at 244-45.

Wells concedes that he never filed a Rule 56(f) motion and

affidavit. The record also contains no evidence that he raised

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the need for additional discovery in his brief in opposition to

the Government’s summary judgment motion. And although Wells

attached a witness list to his brief, his list fails to

articulate what additional facts would be gained through

discovery or how those facts would enable him to survive summary

judgment. To the contrary, it merely contains vague assertions

as to the listed individuals’ relevance. Thus, we cannot say

that the district court abused its discretion in refusing to

allow discovery prior to entering summary judgment for the

Government.

IV.

For the foregoing reasons, we conclude that Wells failed to

create a genuine issue of material fact that he suffered

retaliatory or hostile work environment discrimination. Nor

does he show that the district court abused its discretion in

refusing to allow him discovery prior to the entry of summary

judgment. Accordingly, we affirm the district court’s grant of

summary judgment.

AFFIRMED

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