Morales-Vallellanes v. Potter

United States Court of Appeals
For the First Circuit

Nos. 08-2346
08-2452

ANGEL DAVID MORALES-VALLELLANES,

Plaintiff-Appellant/Cross-Appellee,

v.

JOHN E. POTTER, UNITED STATES POSTMASTER GENERAL,

Defendant-Appellee/Cross-Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Camille L. Vélez-Rivé, U.S. Magistrate Judge]

Before

Torruella, Circuit Judge,
Baldock,* Senior Circuit Judge,
and Howard, Circuit Judge.

Miguel E. Miranda-Gutiérrez, was on brief for appellant/cross-
appellee.
Michael P. Abate, with whom Marleigh D. Dover, Attorneys,
Appellate Staff, Civil Division, U.S. Department of Justice,
Michael F. Hertz, Acting Assistant Attorney General, Rosa E.
Rodríguez-Vélez, United States Attorney, District of Puerto Rico,
were on brief for appellee/cross-appellant.

May 11, 2010

*
Of the Tenth Circuit, sitting by designation.
 TORRUELLA, Circuit Judge. Plaintiff-appellant/cross-

appellee Angel David Morales-Vallellanes ("Morales") obtained a

jury verdict in his favor on claims under Title VII alleging

discrimination and retaliation by his former employer, John E.

Potter, the United States Postmaster General ("Potter"). In a

prior appeal, we limited Morales to pursuing claims based on three

discrete incidents that were previously the subject of formal Equal

Employment Opportunity Commission (EEOC) complaints, and expressly

precluded him from seeking relief for a "plethora" of other

allegations raised for the first time in the district court. See

Morales-Vallellanes v. Potter, 339 F.3d 9, 19 (1st Cir. 2003)

[hereinafter "Morales I"]. Despite this limitation, the evidence

presented at trial included numerous allegations of discrimination

and retaliation that were well beyond the scope of our limited

remand. Nonetheless, the jury was instructed that Morales could

only recover for his claims based on the three specific allegations

addressed in the prior appeal. On December 21, 2007, the jury

returned a $500,000 lump-sum verdict in his favor, which was later

reduced by way of statutory cap to $300,000. See 42 U.S.C. § 1981a

(b)(3)(D). The trial court awarded an additional $64,504 in back

pay.

Morales brought this appeal to challenge the sufficiency

of the trial court's back pay award, as well as its decision

denying him front pay. On cross appeal, Potter contends that the

-2-
jury verdict cannot stand because Morales failed to prove that he

suffered any materially adverse employment action capable of

supporting his claims under Title VII. Potter also challenges the

jury's damages award as grossly excessive and based on evidence

that we previously excluded; contends that Morales was not entitled

to back pay; and in various ways opposes Morales's contentions that

his damages award was inadequate.

After careful consideration, we conclude as a matter of

law that Morales has failed to prove that he suffered any material

adverse employment action within the meaning of Title VII's

discrimination or retaliation provisions. We therefore vacate the

jury verdict and remand with instructions to enter judgment in

Potter's favor.

I. Background

A. Facts1

We sketch only the basic facts essential to this appeal.

Morales began his employment with the United States Postal Service

("USPS") in 1988 as a Distribution Clerk. In 1990, he was

transferred to the USPS station in Caparra Heights, Puerto Rico.

In 1995, Morales bid for and obtained the position of Distribution

and Window Clerk. In this capacity, Morales typically performed

back-office "distribution" duties, which included "business reply,"

1
Additional detail regarding Morales's allegations can be found
in our prior opinion. See Morales I, 339 F.3d at 12-14.

-3-
"express mail," and "postage due" functions. Because Morales

worked the early shift and had an arm injury that limited the tasks

he could perform without pain, Morales rarely performed "window"

duties, which included customer interactions; nonetheless, he was

trained to do so, did so on occasion, and those tasks were part of

the job description he had bid for.

Beginning in approximately early 1996, Morales lodged

several complaints with the Occupational Safety and Health

Administration (OSHA) regarding dust accumulation, rodent

infestation, and general unsanitary conditions at the Caparra

Heights station. Eventually, OSHA conducted a formal inspection

and issued the USPS citations for various safety and health

violations. Around the same time, Morales also filed unrelated,

employment-based complaints with the EEOC. Morales alleged that

his supervisors and coworkers began to take various retaliatory

actions against him for filing these complaints, and to

discriminate against him on account of his gender. Only three such

actions are relevant to this appeal.

First, in January 1996 Morales expressed interest in

bidding for a Distribution and Window Clerk position that was

expected to come with Saturdays and Sundays off, a coveted position

given that many USPS employees had an irregular weekend schedule.2

2
At the time, Morales had Sundays and Mondays off. Morales
testified that at some point in 1996, he was given Saturday and
Sundays off instead.

-4-
Thereafter, the USPS reclassified the position so that, when it was

posted, it came with Thursdays and Sundays off instead. On

February 15, 1996, Morales filed a precomplaint with the EEOC

alleging that this reclassification was in retaliation for various

complaints he had filed, including with the EEOC.3 He alleged that

the reclassification was intended to dissuade him from bidding for

the position.

Second, on March 23, 1996 Morales's supervisor issued him

a letter of warning for unsatisfactory performance due to an "abuse

of coffee breaks," which was withdrawn from his personnel file

about a week later. On April 25, 1996, Morales filed a second

precomplaint with the EEOC alleging that a new coffee and lunch

break policy at the Caparra Heights station unlawfully

discriminated against male employees. Specifically, he complained

that a female employee, Mayra Irene, was allowed to take longer

breaks than permitted under the policy, while male employees were

3
The EEO complaint process provides an administrative
forum for postal employees to resolve discrimination
claims against the USPS. Postal workers alleging
discrimination are required to file a "precomplaint" and
consult with an EEO counselor. If the matter raised in
the precomplaint is not resolved within the established
30-day counseling period, the employee is authorized to
file a formal EEO complaint. Once the formal complaint is
filed, USPS is compelled to take action within a
specified time period. After this period expires, the
employee is permitted to file suit in United States
District Court.

Morales I, 339 F.3d at 13.

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not. He also alleged that on one occasion, his supervisor took

Mayra Irene and another female administrative employee out to

lunch, but returned late in violation of the policy.

Third, on April 9, 19964 Morales's business reply mail,

postage due, and express mail duties were temporarily reassigned to

a female employee, again Mayra Irene, while he was given "window"

duties to perform. Morales complained to the EEOC regarding this

rotation of responsibilities, alleging that it was discriminatory

and in retaliation for his previous complaints.

All three incidents were the subject of formal EEOC

complaints which made their way through the administrative process,

and were ultimately dismissed. See Morales I, 339 F.3d at 18.

B. Proceedings Below

In 1997 Morales brought suit in the district court

alleging that USPS officials had retaliated against him for his

various EEOC complaints and had discriminated against him on the

basis of his gender; that the USPS and Postal Workers Union

officials breached their obligations under a collective bargaining

agreement ("CBA"); and that he suffered an intentional infliction

of emotional distress at defendant's hands. The district court

granted summary judgment in Potter's favor on all claims.

4
Contrary to his initial allegations, Morales testified that this
incident may have occurred in May 1996.

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 In Morales I, we affirmed the district court in most

respects, but disagreed with its conclusion that the acts of

discrimination and retaliation Morales had alleged as violations of

the CBA were not actionable under Title VII. We determined,

however, that many of the allegations of harassment and retaliation

Morales relied on to support his federal claims had never been the

subject of a formal complaint to the EEOC, and were therefore

barred by Title VII's administrative exhaustion requirement.

Accordingly, we remanded for the limited purpose of considering

Morales's allegations of discrimination and retaliation arising out

of the three incidents described above, which were addressed in the

EEOC dismissal letters. Because no court had analyzed Morales's

claims based on these events under the Title VII rubric, we

declined to independently undertake that assessment and instead

left that task to the district court in the first instance. We

instructed as follows:

Morales is precluded on remand from seeking
relief for a plethora of other acts of
discrimination and retaliation alleged in his
amended complaint, including the discrete acts
of bullying, intimidation, and vandalism by
his co-workers, his seven-day suspension for
violating the USPS uniform policy, his
transfer from the Caparra Heights station, his
day-long "expulsions" from work in February
1997, his constructive discharge, and his
internal grievances against [the Postal
Workers Union].

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Morales I, 339 F.3d at 19.5

Following our remand, the defendants moved for summary

judgment on the theory that Morales's remaining allegations failed

as a matter of law to rise to the level of retaliation or

discrimination within the meaning of Title VII, but the district

court denied the motion in a margin order, which specified that

the trial would be "limited to the three issues which survived

appeal."6 Thereafter, the case was referred to a magistrate judge

for trial, see 28 U.S.C. § 636, who, in a series of pre-trial

orders, made it clear that the evidence presented at trial, and the

claims submitted to the jury, would be limited to the three

specific incidents identified in our prior opinion.

Morales testified at the trial, which lasted eight days.

Much of his testimony and the evidence presented veered well beyond

the clear lines drawn in our prior opinion and the trial court's

various orders. Thus, Morales told the jury about discrete acts of

vandalism by his coworkers, including that they punctured his tires

and poured sugar in his gas tank.

He described numerous acts of bullying and intimidation

in the workplace. Among other things, he testified that his

5
Morales moved for panel reconsideration, which was denied.
6
The district court did not address the merits of Potter's legal
challenge, concluding instead that whether Morales suffered
actionable discrimination or retaliation "involve[d] factual
issues, as well as matters of credibility and weight of the
evidence."

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supervisors engaged in a campaign of harassment and retaliation by

"put[ting] the employees against" him; that things became "really

tense" in the office when he was investigated "for some supposed

death threat [he] had given to another employee;" that the

"environment became extremely violent against him;" that he

"started receiving threats from other employees;" and that eleven

coworkers wrote a letter accusing him of "always playing games

physically with other employees in events where he kisses them or

touches them by massaging their backs and necks." The letter was

read into evidence.

Morales also told the jury that he was suspended for

seven days for violating the USPS uniform policy. He testified

that he was transferred from the Caparra Heights station because he

"was allegedly a safety hazard and/or supposedly a homosexual."

Morales's counsel questioned a former supervisor about Morales's

day-long expulsions from work in February 1996, about his seven-day

suspension for alleged violations of the uniform policy, and about

whether Morales acted like a "homosexual man."

Morales spoke at length about the emotional distress he

suffered as a result of ongoing discrimination and retaliation he

endured at the USPS. He explained, "[T]he discrimination became

something of everyday. I lost sleep. I spent days that I was on

alert without sleeping, thinking about what new thing they're going

to come up with the next day, what new thing." His treating

-9-
physician, Dr. Hoyos, opined that Morales suffered from an

adjustment disorder caused by the cumulative effect of multiple

stressors in the workplace. Of the ten stressors specifically

identified by Dr. Hoyos, the allegedly discriminatory coffee break

policy and rotation of window duties incident, combined, were a

single stressor. The altered job posting was not identified as

contributing to Morales's adjustment disorder.

In its charge, the trial court instructed the jury that

it could only compensate Morales for the three specific incidents

identified in our prior opinion. The verdict form which the jury

returned indicated generally that it had found Potter liable for

both discrimination and retaliation, but it did not apportion the

damages award among the specific claims. Later, on Morales's

motion, the court awarded back pay -- offset by the amount of

disability payments plaintiff had been receiving since 1997, when

Morales began to collect disability payments7 -– and denied his

request for front pay.

Both parties filed post-trial motions. Morales

challenged the court's back pay award as too low, as well as its

denial of his motion seeking front pay. Potter filed motions for

judgment as a matter of law on account of Morales's alleged failure

to prove actionable discrimination or retaliation; for remittitur

7
Since that time, Morales has received approximately 66.33% of
his USPS salary through the U.S. Department of Labor's Workers'
Compensation Program. He technically remains a USPS employee.

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or, in the alternative, a new damages trial; and challenging the

back pay award. See Fed. R. Civ. P. 50, 59(a), (e). The district

court denied Potter's motions, but granted in part Morales's motion

seeking additional back pay due to a computational error in the

original judgment. Both parties filed timely appeals.

II. Discussion

A. Standard of Review

We review de novo the district court's denial of a

defendant's motion for judgment as a matter of law.

Rodríguez-Torres v. Caribbean Forms Mfr., Inc., 399 F.3d 52, 57

(1st Cir. 2005). Potter's primary challenge focuses on the legal

sufficiency of Morales's claims alleging discrimination and

retaliation. He contends Morales has failed to prove that he

suffered any materially "adverse employment action." Often,

whether an employee has suffered a materially adverse employment

action capable of supporting claims under Title VII is a question

of law for the court. See Bergeron v. Cabral, 560 F.3d 1, 6 n.1

(1st Cir. 2009)(explaining that "the adversity vel non of that

action is a legal question"); DeNovellis v. Shalala, 124 F.3d 298,

312 (1st Cir. 1997)(characterizing as a "legal question" whether

plaintiff's "sham assignment constituted an adverse employment

action within the meaning of Title VII").8 In this analysis, we

8
With respect to Morales's claims of retaliation, we are mindful
that "the significance of any given act of retaliation will often
depend upon the particular circumstances" of each case. Burlington

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assume that the motivation for the employer's acts was

discriminatory or retaliatory, and look only to the statutory

significance of the harm these acts caused. Cf. Burlington

Northern, 548 U.S. at 70.

B. The Scope of the Claims

As a threshold matter, the parties dispute the scope of

the claims under review. Potter maintains that the claims are

limited to the three incidents described in our prior opinion,

while Morales asserts that, for various reasons, the claims

submitted to the jury encompassed all of the "plethora" of

unexhausted allegations which we excluded in the first appeal. One

problem with Morales's argument is that the trial court's orders in

limine, instructions to the jury, and discussion of Morales's

claims in its post-trial order were all consistent with the

N. & Santa Fe Ry. v. White, 548 U.S. 53, 69 (2006)("Context
matters."); see also Oncale v. Sundowner Offshore Servs., 523 U.S.
81, 82 (1998)("The real social impact of workplace behavior often
depends on a constellation of surrounding circumstances,
expectations, and relationships which are not fully captured by a
simple recitation of the words used or the physical acts
performed."). Thus, we review the factual circumstances bearing on
the legal significance of these actions in the light most favorable
to the verdict. Cf. Bergeron, 560 F.3d at 6 n.1 (noting that "the
existence of an adverse employment action may be a question for the
jury when there is a dispute concerning the manner in which the
action taken affected the plaintiff-employee"(citing Rivera-Jiménez
v. Pierluisi, 362 F.3d 87, 94 (1st Cir. 2004)); see also Granfield
v. CSX Transp.,Inc., __ F.3d __, 2010 U.S. App. LEXIS 5299, at *15
(1st Cir. Mar. 12, 2010)(in considering the denial of a party's
motion for judgment as a matter of law, appellate courts "examine
the evidence presented to the jury, and all reasonable inferences
that may be drawn from such evidence, in the light most favorable
to the jury verdict").

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limitation in our prior opinion. Though Morales contends that the

district court ultimately agreed with his reading of the scope of

the claims, he has identified nothing in the record to support that

assertion.

Another problem with Morales's contention is that our

holding in Morales I limiting his claims to the three incidents we

have described is "the law of the case." See, e.g., United States

v. Vigneau, 337 F.3d 62, 67 (1st Cir. 2003)("law of the case"

doctrine is a "prudential principle that 'precludes relitigation of

the legal issues presented in successive stages of a single case

once those issues have been decided'"); see also United States v.

Rivera-Martínez, 931 F.2d 148, 150 (1st Cir. 1991) ("When a case is

appealed and remanded, the decision of the appellate court

establishes the law of the case and it must be followed by the

trial court on remand." (emphasis in original)). We have

recognized limited exceptions to the application of this doctrine,

see Vigneau, 337 F.3d at 68, but Morales never argued to the trial

court that any of these limited exceptions should apply, and he

does not do so here. This failure to confront the implications of

our prior holding essentially forecloses Morales's attempt, raised

for the first time in his opposition to Potter's cross-appeal, to

broaden the scope of the claims now under review.9

9
In any event, Morales's various contentions lack merit. Our
independent review of Morales's submissions to the EEOC reveal that
Morales did, in fact, include in a formal complaint the additional

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 Thus, while the trial court may have allowed Morales to

introduce a broad range of evidence relating to his experience at

the Caparra Heights station, including evidence relating to his

excluded allegations, the jury was instructed that it could only

compensate him for the three specific incidents that we remanded.10

allegation that his tires were punctured on two occasions while his
car was parked in the Caparra Heights station employee parking lot.
At the trial, Morales put into evidence a sworn declaration from a
co-worker, Samuel Cora-Rivera, which stated that Cora-Rivera had
heard that Morales's tires were punctured by a Caparra Heights
supervisor as an act of retaliation. On that basis, Morales
misleadingly asserts that, because these incidents were included in
a formal EEOC complaint and were proven to be retaliatory, we
should consider these acts "adverse employment actions" for
purposes of his retaliation claim. Morales fails to point out,
however, that Cora-Rivera testified at the trial and unambiguosly
retracted his statements in the declaration, stating that "[a]ll of
the paragraphs [in the sworn statement] are not true." We do not
consider this incident in our analysis of Morales's Title VII
claims.
10
The jury instructions provided, in relevant part:

Pursuant to the Opinion of the Court of Appeals for the
First Circuit . . ., plaintiff Morales's Title VII cause
of action is limited to those discrimination and
retaliation allegations in his amended complaint that
were previously the subject of a formal EEO complaint, to
wit;
1. Morales' allegation that Job Bid # 2541417 was
posted with Thursday/Sunday rest days rather
than Saturday/Sunday rest days in retaliation
for plaintiff's OSHA complaints;
2. Morales allegation of sexual discrimination
and retaliation arising on April 9, 1996
incident [sic] in which plaintiff's duties and
responsibilities were awarded to a female
employee and he was given window clerk duties
to perform;
3. Morales' allegation that the 'coffee and lunch
break's policy' was not applied in an equal
and nondiscriminatory manner.

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"A basic premise of our jury system is that the jury follows the

court's instructions," and therefore we assume, as we must, that

the jury acted according to its charge. Refuse & Envtl. Syss.,

Inc. v. Indus. Servs. of Am., Inc., 932 F.2d 37, 40 (1st Cir.

1991). Accordingly, we proceed to assess the legal sufficiency of

only those claims actually submitted to the jury.11

1. Discrimination

Title VII provides that "[a]ll personnel actions"

affecting federal employees "shall be made free from any

discrimination based on race, color, religion, sex, or national

origin." 42 U.S.C. § 2000e-16(a). In order to present a legally

viable claim of employment discrimination under the statute, a

plaintiff must show, among other things, that he suffered an

"adverse employment action" on account of a protected ground.

García v. Bristol-Myers Squibb Co., 535 F.3d 23, 31 (1st Cir.

2008); see also George v. Leavitt, 407 F.3d 405, 411 (D.C. Cir.

2005) (explaining that "Title VII places the same restrictions on

See also Morales-Vallellanes v. U.S. Postal Serv., No. 97-2459,
slip op. at 9 (D.P.R. Aug. 27, 2008)(post-trial order discussing
limitations on claims submitted to the jury).
11
We acknowledge that, with respect to the admission of evidence,
it appears that the trial court was inexplicably lax in its
enforcement of its pre-trial orders, and Potter routinely failed to
object at trial. Nonetheless, contrary to Morales's contentions,
we do not agree that Potter is therefore estopped from asserting
that the jury award was limited to the three incidents we remanded,
which were clearly delineated in the pre-trial orders and
instructions to the jury.

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federal [employers] as it does on private employers, and so we may

construe the latter provision in terms of the former" (internal

quotation marks omitted)). An "adverse employment action" is one

that "affect[s] employment or alter[s] the conditions of the

workplace," Burlington Northern, 548 U.S. at 61-62, and typically

involves discrete changes in the terms of employment, such as

"hiring, firing, failing to promote, reassignment with

significantly different responsibilities, or a decision causing

significant change in benefits." Burlington Indus., Inc. v.

Ellerth, 524 U.S. 742, 761 (1998); accord Gu v. Boston Police

Dep't, 312 F.3d 6, 14 (1st Cir. 2002) ("To be adverse, an action

must materially change the conditions of plaintiffs' employ."

(emphasis added)). A materially adverse change in the terms and

conditions of employment "must be more disruptive than a mere

inconvenience or an alteration of job responsibilities." Marrero

v. Goya of P.R., Inc., 304 F.3d 7, 23 (1st Cir. 2002).

Whether an employment action is materially "adverse" --

and therefore actionable under Title VII -- is gauged by an

objective standard. Blackie v. Maine, 75 F.3d 716, 725 (1st Cir.

1996). "Work places are rarely idyllic retreats, and the mere fact

that an employee is displeased by an employer's act or omission

does not elevate that act or omission to the level of a materially

adverse employment action." Marrero, 304 F.3d at 23 (internal

quotation marks omitted).

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 2. Retaliation

Unlike its private-sector counterpart, Title VII does not

contain an express antiretaliation provision applicable to the

federal government as employer. See 42 U.S.C. § 2000e-16(a).

Nonetheless, we have assumed that the antiretaliation provision

applicable to private employers operates to prohibit retaliation in

the federal sector. See DeCaire v. Mukasey, 530 F.3d 1, 19 (1st

Cir. 2008); see also Gómez-Perez v. Potter, 553 U.S. 474, 128 S.

Ct. 1931, 1941 n.4 (2008) (acknowledging, but declining to decide,

the open question of "whether Title VII bans retaliation in federal

employment").

As with a claim for discrimination, a plaintiff alleging

workplace retaliation must prove, among other things, that he

suffered an "adverse employment action" on account of a protected

activity. See, e.g., DeCaire, 530 F.3d at 19; see also Broderick

v. Donaldson, 437 F.3d 1226, 1232 (D.C. Cir. 2006)("In the absence

of a finding that the plaintiff has suffered adverse action, a

retaliation claim fails as a matter of law."). However, "the

antiretaliation provision, unlike the substantive provision, is not

limited to discriminatory actions that affect the terms and

conditions of employment." Burlington Northern, 548 U.S. at 64;

see also Billings v. Town of Grafton, 515 F.3d 39, 54 (1st Cir.

2008)("[C]onduct need not relate to the terms or conditions of

employment to give rise to a retaliation claim."). Rather, a

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plaintiff may satisfy this requirement by showing 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 Northern, 548 U.S. at 64.12

"This is an objective test and 'should be judged from the

perspective of a reasonable person in the plaintiff's position,

considering all the circumstances.'" Lockridge v. Univ. of Me.

Sys., 597 F.3d 464, 472 (1st Cir. 2010) (quoting Burlington

Northern, 548 U.S. at 71). Examples of adverse employment actions

in the retaliation context "include 'termination of employment, a

demotion evidenced by a decrease in wage or salary, a less

distinguished title, a material loss of benefits, significantly

diminished material responsibilities, or other indices that might

be unique to a particular situation.'" Lapka v. Chertoff, 517 F.3d

974, 986 (7th Cir. 2008)(quoting Crady v. Liberty Nat'l Bank &

Trust Co. of Indiana, 993 F.2d 132, 136 (9th Cir. 1993)). Minor

12
In Gómez-Pérez, the Supreme Court held that the Americans with
Disabilities Act's (ADA) federal-sector provision, which "was
patterned 'directly after' Title VII's federal-sector
discrimination ban," prohibited workplace retaliation through its
substantive antidiscrimination prohibition. See 128 S. Ct. at
1940. Potter thus maintains that Title VII's federal-sector
provision bans workplace retaliation, if at all, only if it results
in an adverse "personnel action[]," 42 U.S.C. § 2000e-16(a), which
he contends means only those actions that affect employment or
alter the conditions of the workplace. We do not reach this
argument because we conclude that even under the Burlington
Northern standard Morales has failed to prove he suffered any
adverse employment action.

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disruptions in the workplace, including "petty slights, minor

annoyances, and simple lack of good manners," fail to qualify.

Burlington Northern, 548 U.S. at 68.

3. Morales's Claims

a. The Coffee and Lunch Break Policy

The first set of claims brought by Morales, alleging both

discrimination and retaliation, arises from his allegation that the

Caparra Heights coffee and lunch break policy was not enforced in

an equal and nondiscriminatory matter, insofar as certain female

employees were, at times, permitted to take longer breaks than the

policy provided for. Under the policy, employees were allowed to

take either a half hour or an hour lunch break, plus a ten minute

coffee break during each half of their shift. When Morales

complained about the discriminatory enforcement of the policy, his

supervisor began to require all employees to clock in and out each

time they took a break.

However, even if two female employees were permitted to

take longer breaks than Morales on account of their gender, such

selective enforcement of the breaks policy had no material effect

on Morales's employment and therefore cannot constitute

discrimination within the meaning of the statute. He was not

formally disciplined for violating the policy,13 or denied the

13
While Morales received a letter of warning for taking an
extended coffee break on March 22, 2006, the letter was removed
from plaintiff's file just 5 days later. This preliminary action

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opportunity to take breaks himself. On these facts, we hold that

the selective enforcement of the breaks policy fails to sustain a

claim for gender discrimination.

Likewise, we conclude that the selective enforcement of

the breaks policy fails to rise to level of actionable retaliation.

Morales's retaliation claim includes an allegation that, following

the submission of an EEOC complaint, his supervisor, Enrique López,

closely monitored the lunch and coffee breaks Morales took. He

also testified that, by requiring that all employees clock in and

out each time they went on break, López attempted to stir up other

employees against him.14 Morales, however, was not treated

differently than other employees in the application of the policy

as a result of his complaint; indeed, his complaint rests on the

assertion that all employees were treated equally (though they may

was insufficient to support a claim of discrimination. See 29
C.F.R. § 1614.107(a)(5) (requiring agency to "dismiss" any
administrative complaint that "is moot or alleges that a proposal
to take a personnel action, or other preliminary step to taking a
personnel action, is discriminatory").
14
Specifically, Morales testified:

And, in front of everyone, [López] said that, because
someone had placed an EEO[C complaint], now everybody had
to punch in their timecards for every time they would go
out on a break, when they left on break, and when they
came back. Obviously, this was a policy that the
employees did not like. And so, all of them . . . well,
maybe not all of them, but most of them started to look
at me bad.
It was a very smart way of putting the employees
against me.

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not have liked it). Thus, the adverse action anchoring Morales's

complaint of retaliation is essentially the relief he requested in

his discrimination complaint, and therefore would not dissuade a

reasonable employee from filing or supporting a charge of

discrimination. Cf. Burlington Northern, 548 U.S. at 68 ("An

employee's decision to report discriminatory behavior cannot

immunize that employee from those petty slights or minor annoyances

that often take place at work and that all employees experience.").

Accordingly, Morales's claims arising from the selective

enforcement of the breaks policy fail as a matter of law because

Morales suffered no material adverse employment action within the

meaning of Title VII's discrimination or retaliation provisions.

b. Rotation of Responsibilities

Next, Morales asserts claims for both discrimination and

retaliation arising from the "incident in which plaintiff's duties

and responsibilities were awarded to a female employee and he was

given window clerk duties to perform." Morales I, 339 F.3d at 18.

We hold that this temporary rotation of Morales's preferred

distribution duties to a female clerk fails to qualify as an

adverse employment action for purposes of either claim.

Morales was required to perform "window" duties rather

than "distribution" duties for only a limited period of time, those

duties fell within his job description (indeed, which he bid for),

and there was evidence that on other, albeit rare, occasions he had

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performed "window" duties in the normal course of his employment.

Cf. Butler v. Ala. Dep't of Transp., 536 F.3d 1209, 1215 (11th Cir.

2008) ("Requiring an employee to perform her job is not a change in

the terms, conditions, or privileges of her employment."). Morales

himself testified that, "I was trained for [window duties]. I

could do [them]. I was prepared to do [them]." Such a minor

disruption in the tasks Morales preferred to perform cannot, as a

matter of law, sustain his claim for damages under Title VII's

antidiscrimination provision. See Marrero, 304 F.3d at 23

(secretary's permanent, lateral reassignment to work in same

capacity for different boss did not rise to level of an adverse

employment action where "her general job description and salary

remained the same," notwithstanding the fact that she "was required

to do more work, subjected to 'extreme supervision,' and forced to

undergo a period of probation"); see also Washington v. Ill. Dep't

of Revenue, 420 F.3d 658, 661 (7th Cir. 2005) (explaining that "a

lateral transfer that does not affect pay (or significantly affect

working conditions) cannot be called discriminatory").15

15
We emphasize that there was no evidence presented at trial that
the rotation was permanent, or that he was divested of meaningful
job responsibilities as a consequence. Cf. DeNovellis, 124 F.3d at
306 (explaining that "five-month assignment [of plaintiff] to a
financial position for which he had no background and the
concomitant deprivation of meaningful duties constituted an adverse
employment action within the meaning of Title VII"). Rather, his
testimony demonstrates that he experienced the sort of temporary
"reassignment that involves only minor changes in working
conditions [which] normally does not constitute an adverse
employment action." Marrero, 304 F.3d at 23.

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 Nor can this temporary rotation of responsibilities

qualify as an adverse employment action for purposes of his

retaliation claim. In appropriate circumstances, disadvantageous

work assignments may qualify as materially adverse, but Morales's

temporary reassignment is a far cry from those situations where we

have found actionable retaliation. See generally Valentín-Almeyda

v. Municipality of Aguadilla, 447 F.3d 85, 95 (1st Cir. 2006)

(finding a totality of assignments, which included a police

officer's transfer for an "unusually long" duration to a "remote

and solitary" duty site that was "regarded as punishment" by

officers, to constitute adverse employment action).

While Morales testified that the window duties presented

certain "physical difficulties" in light of his arm condition, he

made it crystal clear that he was able to perform those duties "as

long as it was not for a long time" and he did not state that he

experienced any unique hardship as a result of performing "window"

tasks. There is no evidence that window duties were more

difficult, less prestigious, or objectively inferior to Morales's

distribution duties; rather, the gravamen of Morales's complaint is

that he preferred his regular assignment. Compare Burlington

Northern, 548 U.S. at 71 (holding that permanent reassignment of a

female forklift operator to track laborer was a materially adverse

action where there was "considerable evidence that the track

laborer duties were 'by all accounts more arduous and dirtier';

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that the 'forklift operator position required more qualifications,

which is an indication of prestige'; and that 'the forklift

operator position was objectively considered a better job and the

male employees resented [the plaintiff] for occupying it'").

Under the circumstances, we hold that the temporary

rotation of Morales preferred window duties does not qualify as

materially adverse and cannot support his claims under Title VII.

c. The Altered Job Posting

Morales's final claim, alleging retaliation only, focuses

on the altered job posting. He maintains that, because he filed a

complaint with the EEOC, the USPS changed the days off that were

expected to come with a certain Distribution and Window Clerk

position when it was posted for bidding. There is no dispute that

the only difference between Morales's position at the time of this

incident and the position in which he expressed an interest was

that the new posting was expected to come with Saturdays and

Sundays off, but was ultimately posted with Thursdays and Sundays

off instead. We conclude that this alteration of rest days was

insufficient to dissuade a reasonable employee from filing or

supporting a charge of discrimination.

In appropriate circumstances, not present here, a

schedule change may operate to dissuade a reasonable employee from

reporting workplace discrimination. See Burlington Northern, 548

U.S. at 69. In this case, however, there is no indication in the

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record that changing the days off associated with the new posting

affected Morales any more than it did other eligible bidders. See

Lockridge, 597 F.3d at 473 (no adverse employment action where

denial of office space "left [the employee] in no worse a position

than that held by similarly situated faculty members"). Moreover,

there is no evidence that Morales suffered any undue hardship as a

result of continuing to have Sundays and Mondays, rather than

Sundays and Saturdays, off. See Burlington Northern, 548 U.S. at

69 (explaining that "[a] schedule change in an employee's work

schedule may make little difference to many workers, [but] may

matter enormously to a young mother with school-age children"); see

also Washington, 420 F.3d at 662 (finding flex-time schedule

critical to employee with disabled child, and recognizing that

actions "that would be harmless to most people [may] do real damage

to select targets"). Rather, Morales testified that, as a result

of the rotation, he continued to have Sundays and Mondays off

rather than a normal weekend schedule, which he would have

preferred. This is plainly insufficient to support a claim for

retaliation under the statute. Cf. Hughes v. Stottlemyre, 454 F.3d

791, 797 (8th Cir. 2006) (no actionable retaliation where there was

"no evidence to suggest [employee] suffered a materially

significant disadvantage by having to work more Sundays and

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Wednesdays," rather than his preferred schedule).16 We note that

Morales's own medical expert failed to identify the altered job

posting as a stressor contributing to his adjustment disorder.

Thus, after careful consideration, we conclude that

Morales has failed to prove that he suffered any adverse employment

action capable of supporting his claims for discrimination or

retaliation.17 Accordingly, we vacate the verdict and remand to the

district court with instructions to enter judgment as a matter of

law in Potter's favor. No costs are awarded.

16
Other courts confronting roughly similar circumstances have come
to the same conclusion. Thomas v. Potter, 202 Fed. Appx. 118, 119
(7th Cir. 2006) (unpublished decision)(plaintiff's assertion that
shift change was undesirable or inconvenient did not rise to the
level of a materially adverse employment action under Burlington
where the plaintiff did not assert and record did not contain
evidence that the plaintiff had "a unique vulnerability that the
Postal Service knew about and sought to exploit by changing his
shift schedule"); Smith v. Potter, 629 F. Supp. 2d 644, 652 (S.D.
Miss. 2009)(retaliation claim alleging that USPS "attempted to
force [plaintiff] to return to working a schedule with off days of
Friday and Saturday," which plaintiff had worked for preceding six
years, did not constitute an adverse employment action under
Burlington Northern even though plaintiff may have preferred
Saturdays and Sundays off); Arredondo v. Flores, Civil Action No.
L-05-191, 2008 U.S. Dist. LEXIS 77675, 2008 WL 4450311, *20 (S.D.
Tex. Sept. 30, 2008) ("Even if the Burlington standard applies, a
change in schedule, shift, and days off, in this setting, is
insufficient to establish an adverse employment action").
17
Even considering these incidents cumulatively, we still conclude
that Morales has failed to establish that he suffered any adverse
employment action within the meaning of Title VII's antiretaliation
provision. See Aryain v. Wal-Mart Stores Texas LP, 534 F.3d 473,
485 (5th Cir. 2008) (negative treatment, undesired transfer to
another department, undesirable break schedule, and assignment of
more arduous and dirty jobs are not adverse employment actions in
the retaliation context).

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Vacated and Remanded.

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