Hillig v. Rumsfeld

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
AUG 27 2004
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

TERRIE L. HILLIG,

Plaintiff-Appellant,
v.
No. 02-1102
DONALD H. RUMSFELD,
SECRETARY, DEPARTMENT OF
DEFENSE, DEFENSE FINANCE AND
ACCOUNTING SERVICE (DFAS),

Defendants-Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. NO. 99-WY-1164-AJ)

Barry Douglas Roseman, Esq., Roseman & Kazmierski, LLC, Denver, Colorado,
Attorney for Plaintiff-Appellant.

Rachel J. Hines, Attorney, Civil Division (Robert D. McCallum, Jr., Assistant Attorney
General, and Marleigh Dover, Attorney, Civil Division, with her on the brief), United
States Department of Justice, Washington, D.C., Attorneys for Defendants-Appellees.

Kristen L. Mix and Danielle V. Wiletsky, Welborn Sullivan Meck & Tooley, P.C.,
Denver, Colorado, and Paula Brantner, National Employment Lawyers Association, San
Francisco, California, filed an amicus brief for the National Employment Lawyers
Association.

Before O’BRIEN, HOLLOWAY and McWILLIAMS, Circuit Judges.

HOLLOWAY, Circuit Judge.
 This is an appeal from a judgment as a matter of law for the defendants-appellees

in an employment discrimination case after the jury had returned a verdict for the

plaintiff. The district court so held on the ground that an “adverse employment action,”

under Title VII, may be only those employment actions that result in “tangible harm” to

the plaintiff. We disagree and, for the reasons detailed below, hold that a plaintiff need

only show a likely effect on future job opportunities.

Plaintiff also appeals, in the alterative, an evidentiary ruling, jury instruction, and

an interrogatory on the special verdict form. Since we reverse the judgment as a matter of

law and remand for entry of judgment on the jury’s verdict, we need not address these

claims of error.

I

A

By March of 1998, Plaintiff-Appellant Terrie Hillig (Hillig) had been employed by

the Defense Finance Accounting Service (DFAS) in a clerical position for five years.

During her employment with DFAS, Hillig, who is African-American, filed two

discrimination complaints, in 1995 and 1996, with the EEO alleging that her “lead,”

Susan Armer (Armer) and Kathy Reusch (Reusch), her supervisors, had discriminated

against her in connection with her approval ratings in 1995, her 1995 request for annual

-2-
leave (for which approval was delayed while Caucasian and male employees got prompt

approvals), and job training. I Plaintiff-Appellant’s Appendix at 71-74.

These complaints were settled in December of 1996. Id. at 189-91. The terms of

the settlement provided that DFAS would upgrade Hillig’s performance appraisal,

expunge negative information from her personnel file, and retroactively promote her. Id.

In March of 1998, Hillig applied for a position as a Personnel Clerk/Assistant with

the Department of Justice (DOJ). Id. at 76-77. Hillig testified that at her interview for

this position, her interviewer, William Wooden (Wooden), commented that she would be

a perfect fit for the position. Id. at 79. Hillig further testified that Marilyn Ferguson, a

personnel officer at the DOJ, made similar positive comments. Id. at 80. Hillig,

however, did not receive the position, which was eventually filled by Sandra Dye (Dye), a

Caucasian with no prior EEO activity. Id. at 48.

Hillig claims she did not receive this position because of negative

recommendations from her supervisors at DFAS. An EEO investigation revealed that the

DOJ was provided two negative evaluations of Hillig by her supervisors at DFAS, with

one supervisor giving “very strong negative feedback.” Id. at 165. One of her

supervisors, Reusch, who had been the subject of Hillig’s EEO complaint, testified that

she had told a DOJ representative that Hillig had performance problems at work. Id. at

143-44. Reusch also admitted characterizing Hillig as a “shitty employee” to Samilton,

an EEO investigator with DFAS. Id. at 146. According to Wooden, such negative

-3-
information would have disqualified a candidate for the DOJ job. Id. at 106.

Nonetheless, Wooden claims that the negative information provided by Hillig’s

supervisors did not cause his decision to hire Dye over Hillig. Id. Rather, Wooden

testified that he disqualified Hillig because of her long fingernails which, in his

experience, would have adversely affected Hillig’s typing speed. Id. at 107-08. Hillig,

however, disputes this reason and testified that her fingernails had always been short. Id.

at 85.

B

Based upon these events, Hillig filed suit against the DFAS alleging three causes

of action: (1) racial discrimination; (2) retaliation for her EEO complaints; and (3)

violation of her settlement agreement with DFAS. The district court granted DFAS

summary judgment on Hillig’s claim of breach of her settlement agreement but allowed

the other two claims to go to trial. In a special verdict form, the jury found that Hillig’s

negative references were not motivated by racial discrimination but that they were made

in retaliation for her EEO complaints. Id. at 259-60. The jury also found that Hillig had

not proved by a preponderance of the evidence that but for the unlawful retaliation in

March, 1998, Wooden would have offered her the personnel clerk position with the office

of the United States Attorney. Id. at 260. Nonetheless, the jury awarded Hillig $ 25,000

as the amount that would fairly compensate her for DFAS’s illegal retaliation. Id.

On basis of the jury verdict, the district court granted DFAS judgment as a matter

-4-
of law on Hillig’s retaliation claim. The district court so held on the ground that Hillig

failed to establish that she suffered an “adverse employment action,” which is part of a

prima facie case of retaliation under Title VII, because she failed to show that she

suffered an “actual tangible injury.” Specifically, the district court held that Hillig’s

failure to show she would have received the DOJ job but for the negative references was

fatal to her claim. Accordingly, the court entered judgment for DFAS.

Hillig now appeals, claiming that the district court erred in construing an “adverse

employment action” as requiring a showing of a loss of a specific job. Hillig also claims

errors, in the alternative, in several trial errors: that the district judge improperly rejected

an offer of a photo as evidence, he failed to include necessary jury instructions, and he

improperly included an interrogatory on the special verdict form. The National

Employment Lawyer’s Association, in an amicus curiae brief, also argues the district

court erred. In particular, they contend that the remedial goals underlying Title VII’s anti-

retaliation provisions could not be achieved if individuals were required to show loss of a

specific job.

For the reasons detailed below, we hold that the district judge erred in requiring

Hillig to show that she would have received the DOJ position but for the negative

references. Accordingly, we reverse the judgment as a matter of law on this retaliation

claim, we reinstate the jury verdict for $25,000 in Hillig’s favor; and we find that we need

not address the alleged trial errors.

-5-
 II

The adverse employment action issue

One element of a prima facie case under Title VII is that the plaintiff suffered an

“adverse employment action.” Sanchez v. Denver Public Schools, 164 F.3d 527, 531

(10th Cir. 1998). We “liberally define[] the phrase ‘adverse employment action’ . . . .

Such actions are not simply limited to monetary losses in the form of wages or benefits.

Instead, we take a case-by-case approach, examining the unique factors relevant to the

situation at hand.” Id. (citations and quotation marks omitted). One factor that strongly

indicates a challenged action is an “adverse employment action” is that the action causes

“harm to future employment prospects.” Berry v. Stevinson Chevrolet, 74 F.3d 980, 986-

87 (10th Cir. 1996). Nonetheless, “a mere inconvenience or an alteration of job

responsibilities,” is not an adverse employment action. Id.

Here the district court held that Hillig had not established that she suffered “an

actual tangible injury” as a result of the negative references she received. This theory of

failure of proof, the district judge concluded, dictated judgment as a matter of law for

DFAS in light of the Supreme Court’s decision in Burlington Indus., Inc. v. Ellerth, 524

U.S. 742, 761 (1998), which defined a “tangible employment action” as one entailing “a

significant change in employment status, such as hiring, firing, failing to promote,

reassignment with significantly different responsibilities, or a decision causing a

significant change in benefits.” Id. at 761. The judge here so held even though Ellerth

-6-
involved employer liability for sexual harassment under Title VII, id., because, in his

view, the Tenth Circuit had adopted Ellerth’s definition for all retaliation claims.1 We

disagree.

As the district judge noted, Ellerth did not purport to define the term “adverse

employment action” for all employment discrimination claims. Id. at 746-47. Rather, the

issue in Ellerth was the scope of an employer’s liability for sexual harassment where the

employer was not shown to be at fault. Id. As would be expected, the Court’s analysis

was concerned with agency principles, id. at 755, and the opinion explicitly noted that the

“tangible employment action” definition adopted therein was “for resolution of the

vicarious liability issue . . . ,” id. at 761. Accordingly, the Court held that proof of an

adverse “tangible employment action” was relevant insofar as it would preclude an

affirmative defense by an employer that the employee unreasonably failed to avoid or

reduce the harm suffered. Id. at 765-66; Faragher v. City of Boca Raton, 524 U.S. 775,

1
In reaching this conclusion, the district court relied upon our unpublished decision
in Watson v. Norton, 10 Fed. Appx. 669, 678 (10th Cir. 2001). We, however, find this
case unconvincing for two reasons. First, unpublished orders and judgments of this court
are not binding precedent except under law of the case, res judicata, and collateral
estoppel. 10th Cir. R. 36.3(a).
Second, in Watson, we cited Ellerth for the definition of “tangible employment
action,” but did not equate “adverse employment action” to “tangible employment
action.” Instead, we reiterated our longstanding rule that we liberally define adverse
employment action and do not limit that term to “monetary losses in the form of wages or
benefits,” and “take a case-by-case approach.” 10 Fed. Appx. at 678 (citing Sanchez, 164
F.3d at 532) (quotation marks and citations omitted).
Accordingly, Watson did not alter the law of our circuit.

-7-
805 (1998) (decided the same day as Ellerth and holding “When no tangible employment

action is taken, a defending employer may raise an affirmative defense to liability or

damages, subject to proof by a preponderance of the evidence. . . .”). Moreover, the

Court made clear in Faragher, that although Title VII “mentions specific employment

decisions with immediate consequences, the scope of the prohibition is not limited to

economic or tangible discrimination . . . ." 524 U.S. at 786 (emphasis added).

The limited scope of the decisions in Ellerth and Faragher was made even more

clear in Pennsylvania State Police v. Suders, 124 S. Ct. 2342 (2004). There, the Court

described Ellerth and Faragher as delineating two categories of cases where an employee

claims the “adverse employment action” was a hostile work environment: “(1) harassment

that culminates in a tangible employment action, for which employers are strictly liable,

and (2) harassment that takes place in the absence of a tangible employment action, to

which employers may assert an affirmative defense.” Id. at 2353. (quotation marks and

citations omitted) (emphasis added). Moreover, the Court specifically allowed plaintiffs

who allege hostile work environment claims to proceed, subject to the employer’s

affirmative defense, even where they “allege[] no tangible employment action.” Id. at

2357. Thus the Court did not require a showing of a “tangible employment action” as

part of a prima facie case under Title VII in either Ellerth or Faragher.

Nor have our decisions imported this “tangible employment action” definition into

all Title VII claims. The longstanding rule in our circuit has been to “liberally define[]

-8-
the phrase adverse employment action” and not limit the term to simply “monetary losses

in the form of wages or benefits.” Sanchez, 164 F.3d at 532 (citing Berry v. Stevinson

Chevrolet, 74 F.3d at 986-87). A major underpinning of this rule has been the “remedial

nature of Title VII,” reasoning that a liberal definition of Title VII is necessary to best

carry out its anti-discrimination and anti-retaliation purpose. Berry, 74 F.3d at 986-87.

To that end in Berry we held that the filing of false criminal charges constituted an

“adverse employment action” because such an act causes “harm to future employment

prospects.” Id. There the plaintiff pointed out that false “criminal charges of theft and

forgery” constituted an “unlawful employment practice” giving rise to potential Title VII

liability. Id. at 984. We agreed, even though the plaintiff had not shown a specific job

that he did not receive because of the filing of charges and held that “the filing of charges

against a former employee may constitute adverse action.” Id. at 984-85. Thus, in Berry,

we defined an “adverse employment action” as not limited to those situations where a

plaintiff can show loss of an actual job, but also as encompassing those acts that carry a

“significant risk of humiliation, damage to reputation, and a concomitant harm to future

employment prospects.” Id. at 986 (emphasis added).

In our decisions since Ellerth and Faragher, we have not abandoned the definition

we used in Berry.2 While we have cited Ellerth for the proposition that an “adverse

employment action” includes those acts that “constitute[] a significant change in

2
Ellerth and Faragher were both decided on June 26, 1998, and Sanchez v. Denver Public
Schools was decided on December 31, 1998, by this court.

-9-
employment status, such as hiring, firing, failing to promote, reassignment with

significantly different responsibilities, or a decision causing a significant change in

benefits,” we have not held that the term “adverse employment action” is limited to such

acts. Rather, we have continued to liberally define the term “adverse employment action”

and take a case-by-case approach. See, e.g., Sinnett v. Safeway, 337 F.3d 1213, 1217

(10th Cir. 2003); Garcia v. Pueblo County Club, 299 F.3d 1233, 1241 (10th Cir. 2002);

Sanchez, 164 F.3d at 532 (decided 12/31/1998 and citing Berry v. Stevinson Chevrolet, 74

P.3d at 986-87).

Even though we do not require the plaintiff to show the loss of a specific job, we

do not define “adverse employment action” as encompassing every “action taken by a

plaintiff's employer . . . that may affect the plaintiff's future employment opportunities . . .

.” Aquilino v. Univ. of Kan., 268 F.3d 930, 935 (10th Cir. 2001). We exclude from that

definition those acts that merely have a de minimis impact upon an employee’s future job

opportunities. Id. at 934. In Aquilino, we found just such a de minimis effect and,

therefore, a non-materially adverse act. There, the plaintiff was an assistant professor

who claimed that her removal from a dissertation committee constituted an “adverse

employment action.” Id. The plaintiff, however, had been denied tenure for legitimate

reasons and “removal from the [dissertation] committee is a normal incident of the denial

of tenure.” Id. Accordingly, we reasoned that the plaintiff’s removal from the

dissertation committee did not adversely affect her prospects for future employment. Id.

-10-
 Similarly, we found another de minimis impact in Tran v. Trustees of the State

Colleges in Colorado, 335 F.3d 1263 (10th Cir. 2004). There, the plaintiff asserted a

claim of retaliation under Title VII premised upon two reassignments. Id. at 1267. These

reassignments, however, involved no hardship to the plaintiff other than a requirement to

develop new skills. Id. at 1268. The district court applied the “tangible employment

action” standard from Ellerth in granting the defendants summary judgment. Id. at 1267.

While we did not disapprove of the district court’s use of this standard, we did not affirm

on that ground. Instead, we observed that the reassignments were not “adverse” and,

therefore, could not be considered an “adverse employment action.” Id. at 1268.

Moreover, we acknowledged that our precedents require us to define “adverse

employment action” “more liberally under a case-by-case approach” rather than applying

the definition of a “tangible employment action.” Id. at 1267.

Therefore, an act by an employer that does more than de minimis harm, Aquilino,

268 F.3d at 934, to a plaintiff’s future employment prospects can, when fully considering

“the unique factors relevant to the situation at hand,” be regarded as an “adverse

employment action,” even where plaintiff does not show the act precluded a particular

employment prospect, Berry, 74 F.3d at 986-87. Accordingly, while we require that the

“employer’s conduct [] be materially adverse to the employee’s job status,” Wells v.

Colorado Dept. of Transportation, 325 F.3d 1205, 1213 (10th Cir. 2003) (emphasis

added), we allow a plaintiff to show materiality other than by showing a tangible

-11-
employment action, Jeffries v. Kansas, 147 F.3d 1220, 1232 (10th Cir. 1998) (rejecting

application of a Seventh Circuit case, Rabinovitz v. Pena, 89 F.3d 482, 488 (7th Cir.

1996), requiring the plaintiff to show a “change in the terms and conditions of

employment [and] more disruptive than a mere inconvenience or an alteration of job

responsibilities”).

Moreover, our holding today does not venture into uncharted territory. In addition

to being the logical result of our precedents, our decision today is in harmony with views

of the Ninth, and the District of Columbia Circuits. The Ninth Circuit was confronted

with a case similar to Hillig’s in Hashimoto v. Dalton, 118 F.3d 671 (9th Cir. 1997).

There, the plaintiff alleged she received a negative job reference for a job with the Army

from the defendant in retaliation for her EEO activities. Id. at 673. The district court

found as a matter of fact that the Army would not have hired the plaintiff even in the

absence of the negative recommendation. Id. at 675. Nonetheless, the district court

awarded plaintiff attorneys fees and costs. Id. The defendants appealed,

arguing that the plaintiff needed to show a job she would have received but for the

negative reference. Id. at 674. The Ninth Circuit rejected this argument, holding that the

negative job reference was itself the “adverse employment action.” Id. at 675. The court

also noted the fact that “this unlawful personnel action turned out to be inconsequential

goes to the issue of damages, not liability.” Id. at 676.

The District of Columbia Circuit reached a similar conclusion in Smith v.

-12-
Secretary of the Navy, 659 F.2d 1113 (D.C. Cir. 1980). There, the plaintiff alleged he did

not receive a promotion because of negative job-performance evaluations given for

discriminatory reasons. Id. at 1114. The district court found that the plaintiff was

discriminated against but nonetheless declined to recognize him as the prevailing party

entitled to attorneys fees because the plaintiff had not shown he would have received the

promotion but for the negative evaluations. Id. at 1118. The court of appeals reversed,

noting that an “illegal act of discrimination [] is a wrong in itself under Title VII,

regardless of whether that wrong would warrant an award of back pay or preferential

hiring.” Id. at 1120. The court also observed that “[a]n unfavorable employee

assessment, placed in a personnel file to be reviewed in connection with future decisions

concerning pay and promotion, could both prejudice the employee’s superiors and

materially diminish his chances for advancement.” Id.

The Third Circuit’s decision in Wilson v. L.B. Foster, 123 F.3d 746 (3rd Cir. 1997)

also supports our conclusion. There, the EEOC alleged an employee had not received a

job reference from the defendant, as had other employees, in retaliation for her EEO

activity. Id. at 753. The district court found for the defendant on the basis that the

plaintiff had not shown a particular job she would have received but for the absence of a

job reference. Id. Although that court cited approvingly an Eleventh Circuit decision

holding that proof of the loss of a particular job is necessary where an employee sues a

former employer for damages resulting from a negative reference, it nonetheless reversed

-13-
the district court. Id. at 754 n.4 (citing Sherman v. Burke Contracting, Inc., 891 F.2d

1527 (11th Cir. 1990). In so holding, the Third Circuit explicitly held that “[a]n employer

who retaliates can not escape liability merely because the retaliation falls short of its

intended result.” Id. at 754. That court went on to comment that the district court

“improperly focused on the action of the prospective employer and not [that of the

defendant] in determining whether [there was] an adverse employment action.” Id. at

753-54.

We are mindful that the Second Circuit has held that even though a negative

reference can be an “adverse employment action,” proof that the negative reference

“caused or contributed to the rejection by the prospective employer” is part of a prima

facie case of discrimination under the Americans with Disabilities Act. Sarno v. Douglas

Ellman-Gibbons & Ives, Inc., 183 F.3d 155, 160 (2nd Cir. 1999). Similarly, the Eleventh

Circuit upheld a district court’s ruling that a plaintiff had not established a prima facie

case of discrimination under Title VII where he had not shown he would have received a

job but for the negative reference. Bailey v. USX Corp., 850 F.2d 1506, 1508 (11th Cir.

1988). These holdings, however, are inconsistent with our own precedents which require

us to “liberally construe” the term “adverse employment action,” and to take “a

case-by-case approach, examining the unique factors relevant to the situation at hand.”

Sanchez, 164 F.3d at 532.

In this case, we are satisfied the record contains sufficient evidence to support the

-14-
conclusion Hilling had suffered more than de minimis harm to her future employment

prospects with the United States Attorney’s Office. Specifically, there was evidence

showing the negative references were very unfavorable. Id. at 146 (Reusch’s testimony

that she had said Hillig was a “shitty employee”). Moreover, Wooden, the hiring

authority at the DOJ, testified that applicants with negative job references would not be

hired over applicants without such references. Id. at 106. Thus, Hillig has shown that her

negative references seriously harm her ability to obtain employment at the DOJ in the

future. In other words, Hillig has shown that the negative references carried a

“significant risk of humiliation, damage to reputation, and a concomitant harm to future

employment prospects.” Berry, 74 F.3d at 986.

That the negative references in this case were oral is irrelevant. The negative

references Hillig received were communicated to the DOJ, a potential employer, and

would likely preclude her from obtaining employment there in the future. Id. Thus,

Hillig has made her required showing of harm to her future employment prospects with

the DOJ. The extent of the harm to her future employment prospects, i.e., whether her

employment prospects with all potential employers were harmed, affects the “issue of

damages, not liability.” Hashimoto, 118 F.3d at 676.

Consequently, Hillig has shown she suffered an “adverse employment action” and

the judgment against her as a matter of law and for DFAS on her Title VII retaliation

claim was inappropriate. As there is no issue raised concerning the sufficiency of the

-15-
evidence to support the damages awarded by the jury of $25,000, that verdict should not

have been rejected.

III

Additional claims of error

In addition to arguing that the district court erred in its interpretation of what

constitutes an “adverse employment action,” Hillig also alleges three trial errors: the

exclusion of a photograph from introduction in evidence, the failure to provide a jury

instruction, and the inclusion of one interrogatory on the special verdict form. Hillig’s

assertion of these trial errors, however, was made as an alternative argument for a new

trial to be considered only if we were to find the district court did not err in requiring her

to show she would have received the job at the DOJ but for the negative references.

Plaintiff-Appellant’s Corrected Opening Brief at 38. Since we have held that so requiring

as a basis for judgment against Hillig as a matter of law on her retaliation claim was error,

we do not address the additional alleged trial errors.

IV

Conclusion

We hold that the district court erred in requiring Ms. Hillig to prove she would

have received the DOJ job but for her negative recommendations. It is uncontested that

-16-
her evidence was sufficient to support the verdict for damages. Accordingly the judgment

as a matter of law against Ms. Hillig is reversed and the cause is remanded with directions

to enter judgment on the jury’s verdict for Ms. Hillig.

IT IS SO ORDERED.

-17-
02-1102 - Hillig v. Rumsfeld, et al.

O’BRIEN, dissenting.

The procedural posture of this case makes it unique and sets the legal issue in full

relief: whether speculative harm can qualify as an adverse employment action. A jury

concluded Hillig suffered no racial discrimination, but was a victim of retaliation taken

because of a past discrimination claim she had filed. Significantly, it also found the

retaliation did not result in the loss that motivated this claim—a job she sought with the

office of the United States Attorney for the District of Colorado (CUSA). So, it is fair to

ask upon what the $25,000 retaliation damage award rested.

Personnel from the CUSA’s office interviewed Hillig and later spoke to two of her

past supervisors at the Defense Finance and Accounting Service, an office within the

Department of Defense (DOD).1 One past supervisor gave a positive recommendation.

The other (probably Reusch) said she would not rehire Hillig due to performance

problems—in particular, difficulties coding personnel actions and accepting criticism

when a supervisor identified her mistakes. She also said Hillig had previously filed a

1
Hillig’s testimony about her job interview is much more sanguine than that of
Wooden, the decision-maker for the CUSA. Majority Op. at 3. According to Wooden,
none of the applicants were stellar. In fact, he and Ferguson discussed restarting the
entire hiring process because of general dissatisfaction with the pool of applicants. They
did not because of time pressure. (Appellee’s Supp. App. at 43-44.)
discrimination claim.2 That is it, except for the hyperbole.

The majority makes much of the “shitty employee” remark by Reusch. Majority

Op. at 3, 14. Emotionally strong stuff, but grossly misleading. In fact, the “shitty

employee” remark was not made to anyone in the CUSA’s office. It was made much later

to the EEO representative investigating these allegations. It could not have been part of

any retaliatory conduct. That said, a recap can’t hurt.

The retaliatory conduct was Reusch’s oral statements to the CUSA’s

representative—would not rehire, performance problems, filed a discrimination claim.

Those statements did not cost Hillig the job she sought, nor were they part of any

file—not at the DOD, not at the CUSA, not anywhere identified in the record. The most

that can be said is those oral statements might have poisoned the well for Hillig with the

CUSA. But a poisoned well rests upon a string of dubious assumptions: 1) Wooden (or

Ferguson, Wooden’s assistant) would be the hiring authority should Hillig again apply for

a position with the CUSA; 2) Hillig and the details of Reusch’s statements about her

would have lingered in the recesses of Wooden’s (or Ferguson’s) memory; and 3) ancient

memory would work to Hellig’s detriment when recent memory did not (both Wooden

and Ferguson testified, to the jury’s satisfaction, that Reusch’s remarks did not influence

any hiring recommendation or decision). Any residual harm to Hillig is so improbable

The CUSA’s representative testified that the second DOD supervisor (Reusch)
2

mentioned Hillig’s previous discrimination claim. Reusch denied making such a
statement. Apparently the jury concluded otherwise.

-2-
that it can only be assumed. Assuredly it was not proved. The majority thinks such

speculation acceptable. I do not and must dissent.

The district court concluded that our decisions since Ellerth and Faragher 3 have

redefined “adverse employment action,” making it identical (or strikingly similar) to a

“tangible employment action,” as the Supreme Court defined that term.4 The conclusion

may be erroneous, but it is not unwarranted based upon a careful review of our cases.5

Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998); Faragher v. City of Boca
3

Raton, 524 U.S. 775 (1998).
4
The district judge originally refused a defense motion for judgment as a matter of
law, finding it highly probable that the negative reference could have affected Hillig’s
future employment with the CUSA’s office and was, therefore, an adverse employment
action. Upon reconsideration he concluded, “the Ellerth definition applies also in the
context of retaliation claims and that an employment action must be tangible to constitute
an adverse employment action.” (Appellant’s App., Vol. II at 394.) He acknowledged
that he originally, and erroneously, relied upon Apgar v. State of Wyo., 221 F.3d 1351
(10th Cir. 2000) (table), a non- precedential case reviewing a summary judgment. He
said: “[i]n its prior order, the Court did not consider the difference in procedural posture
between the instant case and the Agapar [sic] case. It is now persuaded that the mere
possibility of an adverse effect is sufficient grounds for a plaintiff to survive summary
judgment when there is a dispute of fact; however, a defendant is entitled to a judgment
as a matter of law when there is a finding that there is no harm or no dispute of material
fact as to the non existence of tangible harm.” (Id. at 393-94.)
5
We have applied the “tangible employment action” definition to describe an “adverse
employment action” in at least six published and seven unpublished decisions: Annett v. Univ. of
Kan., 371 F.3d 1233, 1237-39 (10th Cir. 2004); Meiners v. Univ. of Kan., 359 F.3d 1222, 1230
(10th Cir. 2004); Abuan v. Level 3 Communications, Inc., 353 F.3d 1158, 1174 (10th Cir. 2003);
Wells v. Colorado Dep’t Of Transp., 325 F.3d 1205, 1213 (10th Cir. 2003); Aquilino v. Univ. of
Kan., 268 F.3d 930, 934 (10th Cir. 2001); Sanchez, 164 F.3d at 532; Rennard v. Woodworker’s
Supply, Inc., 101 Fed.Appx. 296, 307 (10th Cir. 2004); Hill v. Steven Motors, Inc., 97 Fed.Appx.
267, 278 (10th Cir. 2004); McCrary v. Aurora Pub. Schs., 57 Fed.Appx. 362, 368 (10th Cir.
2003); Hinsdale v. City of Liberal, Kan., 19 Fed.Appx. 749, 756, n.5 (10th Cir. 2001) (FLSA
retaliation claim); Schmidt v. U.S. West Communications, 3 Fed.Appx. 766, 768 (10th Cir. 2001);
Carver v. U.S. Dep’t of Interior, 185 F.3d 873 (10th Circ. 1999) (table); Trujillo v. New Mexico

-3-
 Since Ellerth, we have maintained that we liberally define “adverse employment

action.” See Stinnett v. Safeway, Inc., 337 F.3d 1213, 1217 (10th Cir. 2003); Sanchez v.

Denver Pub. Schs., 164 F.3d 527, 532 (10th Cir. 1998). We also continue to recognize

"[s]uch actions are not simply limited to monetary losses in the form of wages or benefits.

Instead, we take a case-by-case approach, examining the unique factors relevant to the

situation at hand." Sanchez, 164 F.3d at 532 (citation omitted). However, since Sanchez,

even when applying our most liberal definitions, we have tempered our approach by also

stating:

Conduct rises to the level of "adverse employment action" when it
"constitutes a significant change in employment status, such as hiring,
firing, failing to promote, reassignment with significantly different
responsibilities, or a decision causing a significant change in benefits.

Stinnett, 337 F.3d at 1217 (citations omitted). See also Garcia v. Pueblo Country Club,

299 F.3d 1233, 1241(10th Cir. 2003) (defining “adverse employment action” with Ellerth

standard).

Recently, in Meiners v. University of Kan., 359 F.3d 1222, 1230 (10th Cir. 2004),

we analyzed a plaintiff’s retaliation claim as follows:

To be an adverse action, the employer's conduct must be “materially
adverse” to the employee’s job status. The adverse action must amount to
“a significant change in employment status,” such as “firing, failing to
promote, reassignment with significantly different responsibilities, or a
decision causing a significant change in benefits.”

Dep’t of Corrections, 182 F.3d 933 (10th Cir. 1999) (table).

-4-
(emphasis added) (citations omitted).

Likewise, the materiality test rejected in Jeffries v. State of Kan., 147 F.3d 1220,

1232 (10th Cir. 1998), seems to have found new life. In Wells v. Colorado Dep’t of

Transp., 325 F.3d 1205, 1213 (10th Cir. 2003) we said, “[t]o be an adverse action, the

employer’s conduct must be ‘materially adverse’ to the employee’s job status.” The

fluidity of our case-by-case approach renders guidance to bench and bar both malleable

and transient.

Whether or not one agrees with the majority—that the Ellerth and Faragher

“tangible employment action” test does not apply in this situation6—it is necessary to look

at our precedents considering harm to future employment prospects.7 The most notable

decision is Berry v. Stevinson Chevrolet, 74 F.3d 980 (10th Cir. 1996), and is relied upon

by the majority. Majority Op. at 6, 9-11, 15. In that case, the trial judge found the

6
While it did not expressly say so, it appears the Supreme Court assumed an
adverse employment action had to be tangible as well, stating: “[e]very Federal Court of
Appeals to have considered the question has found vicarious liability when a
discriminatory act results in a tangible employment action.” Ellerth, 524 U.S. at 760-61.
Justice Thomas, writing in dissent, also thought that was the majority’s view:
In race discrimination cases, employer liability has turned on whether the
plaintiff has alleged an adverse employment consequence, such as firing or
demotion, or a hostile work environment. If a supervisor takes an adverse
employment action because of race, causing the employee a tangible job
detriment, the employer is vicariously liable for resulting damages. See
ante, at 2268.
Id. at 768 (emphasis added).
7
Unless the Supreme Court or this Court, sitting en banc, has changed the law, the
earliest panel decision controls. In re Smith, 10 F.3d 723, 724 (10th Cir. 1993).

-5-
employer to have caused a criminal charge to be filed against an employee in retaliation

for the employee’s race discrimination charge against the employer. Stevinson, 74 F.3d at

984. On appeal, we said such acts amounted to an adverse employment action because

the resulting criminal trial he endured carried a significant risk of humiliation, damage to

reputation and harm to future employment prospects. Id. at 986. The notoriety of a

public trial, by itself, distinguishes Berry from this case where Hellig lost no immediate

employment prospect and any publicity that could have caused a future loss came as a

result of her acts, not those of the DOD or the CUSA. Cf. Aquilino v. Univ. of Kan., 268

F.3d 930, 934 (10th Cir., 2001) (university did not publicize professor’s removal from

committee). I do not think Berry controls the result here, but it is by no means clear;

certainly the majority thinks otherwise.

The confusion in our case law led the district judge to observe, quite correctly, “the

only way to distinguish these cases is by focusing on the likely effect the employment

action has on future job opportunities.” (Appellant’s App., Vol. II at 331.) And he did so.

In the January 9, 2002 Order, reconsidering a prior order and granting judgment as a

matter of law to the defendant, the court said:

In the instant case, the jury found that there was no change in Hillig’s
employment status because it found that the negative job reference did not
cause the Department of Justice not to hire Hillig. Furthermore, this Court
finds that the negative employment reference, itself, did not cause a
significant change in Hillig’s employment status because it did not have any
other effects on Hillig’s employment status. Hillig is still employed with
the Department of Defense, has been promoted since she received the
negative job reference, and the Department of Justice has since destroyed

-6-
 the memorandum of the negative job reference. Therefore, this Court holds,
as a matter law, that Hillig did not suffer a tangible employment action.

(Id. at 395.)

In one respect this case is like Tran v. Trustees of State Colls. in Colo., 355 F.3d

1263 (10th Cir. 2004). Whether we apply the more vigorous “tangible employment

action” test or liberally define an "adverse employment action" these horses cannot pull

the cart. It is highly unlikely that Hillig lost any employment opportunity. As we stated

in Aquilino, “[s]peculative harm does not constitute adverse employment action. See

Trimmer v. United States Dep't of Labor, 174 F.3d 1098, 1103-04 (10th Cir.1999) (in a

case arising under a federal whistle blower statute, holding that employee's evidence

concerning future employment harm was too speculative to constitute adverse

employment action).” 268 F.3d at 936 (citations omitted).

The district court properly exercised its responsibility for superintendence of the

jury, insuring the verdict conformed to the law. Whether it erred in its legal conclusion

equating “tangible employment action” with “adverse employment action” matters not,

because the record does not support Hillig’s arguments in any event. I would affirm.

-7-