United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 4, 2001 Decided July 6, 2001
No. 00-7238
Marshall Freedman,
Appellant
v.
MCI Telecommunications Corporation,
Appellee
Appeal from the United States District Court
for the District of Columbia
(98cv02753)
Bruce J. Terris argued the cause and filed the briefs for
appellant.
Harvey D. Rumeld argued the cause for appellee. With
him on the brief was Thomas F. O'Neil, III.
Before: Edwards, Chief Judge, Sentelle and Randolph,
Circuit Judges.
Opinion for the Court filed by Circuit Judge Randolph.
Randolph, Circuit Judge: Title VII of the Civil Rights Act
of 1964 forbids an employer from "discriminating against any
individual with respect to his compensation, terms, conditions,
or privileges of employment because of such individual's race,
color, religion, sex, or national origin." 42 U.S.C. s 2000e-
2(a)(1). Marshall Freedman contends that MCI Telecommu-
nications violated that prohibition by discriminating against
him because of his religion during his brief but tumultuous
employment there in 1997.
I.
The story begins in Spring 1997 when Freedman, an Ortho-
dox Jewish man, interviewed for a position as a Network
Services Engineer (NSE). Freedman arrived at the inter-
view wearing his religious garments: a yarmulka (also known
as a kippah or skullcap) and fringes. He was first inter-
viewed by Jeff Porter, who discussed Freedman's qualifica-
tions and showed him the facility. At the end of this inter-
view, Freedman explained to Porter that, because of his
religion, he must be permitted time off for various Jewish
holidays and that his schedule needed to accommodate the
Sabbath, which required him to be home before sundown on
Fridays. Freedman claims that Porter "stormed out" of the
interview when he learned of his religious restrictions.
Nonetheless, the second phase of the interview proceeded,
and Freedman met with Leo Smith, who would actually make
the hiring decision. During his interview with Smith, Freed-
man reiterated his scheduling needs. Shortly after this inter-
view, Smith contacted Freedman, extending a job offer in a
phone call to Freedman's wife, and confirming the offer by
written letter on May 1. Freedman began work on May 12.
By May 29, the company had its first inkling that some-
thing was wrong. On that date, Smith, the manager of the
MCI facility where Freedman was employed, received a five-
page, handwritten letter from Freedman detailing a number
of complaints about his working conditions as well as listing
several requests relating to his training and days that he
needed off for jury duty and Jewish holidays. Smith told
Porter, Freedman's immediate supervisor, to discuss the is-
sues with Freedman and work out solutions.
Among Freedman's early round of complaints was a lack of
access to computers and tools. Freedman was unhappy that
he had not yet been assigned his own computer workstation.
He was also concerned that he was required to share tools
with co-workers. During this early phase of his employment,
Freedman was being trained to perform his new job by
working with David Swithers and Peter Cartland.
In the first two weeks of June, Freedman reminded Porter
that he needed time off for the upcoming Shavous holiday.
Freedman claims that, during his discussions with Porter
regarding holiday leave, Porter expressed reluctance, even
anger, at allowing the time off. Shortly after these meetings,
Porter informed Freedman that he was to be moved to the
night shift.
On June 9, 1997, Freedman began his tenure on the night
shift and had the opportunity to work with a mentor, Scott
Huff. Freedman claims, though, that his experiences with
Huff were cut short because Huff was very busy covering for
other technicians who were on vacation.
On August 12, 1997, Freedman suffered a severe headache
and fainting spell that required him to go to the hospital.
For the next several weeks, he was absent from work on
disability leave. Freedman returned to work on October 6.
He claims that he did not have access to a computer worksta-
tion for the first three weeks of his return to the day shift.
On October 28, 1997, Freedman met with Edward Lynch, a
senior human resource generalist. Apparently in response to
this meeting, Freedman forwarded to Lynch an 18-page,
handwritten letter detailing his claim of discrimination. On
November 21, 1997, Freedman filed a charge of discrimina-
tion with the Equal Employment Opportunity Commission.
Meanwhile, MCI was undergoing significant structural
changes. Sometime in late October or early November,
William MacDonald, the Senior Manager of Operations for
Washington, D.C. and Virginia, asked Smith for a list of
employees in order of their usefulness. Smith provided Mac-
Donald with a ranking that placed Freedman at or near the
bottom of all the employees in his department. MacDonald
used this list as a basis for making recommendations to his
supervisor that employees, including Freedman, be cut from
several departments. On January 16, 1998, Freedman was
informed that he was to be terminated on March 28, 1998.
Freedman filed another charge of discrimination with the
EEOC on January 29, 1998. The EEOC declined to pursue
the charges on August 11, 1998, and Freedman brought suit
in the district court on November 11, contending that MCI
had violated Title VII of the Civil Rights Act.
On a motion by MCI, the district court granted summary
judgment against Freedman on August 22, 2000. Though
sometimes for different reasons, we agree with the district
court that MCI is entitled to judgment as a matter of law.
II.
Rule 56 indicates that summary judgment is appropriate
when there is "no genuine issue of material fact and ... the
moving party is entitled to judgment as a matter of law."
Fed. R. Civ. P. 56(c). The substantive law is used to identify
the "material" facts. See Anderson v. Liberty Lobby, 477
U.S. 242, 248 (1986). And there must be a "genuine" dispute
about those material facts; that is, the evidence must be
"such that a reasonable jury could return a verdict for the
nonmoving party." See id.
For this case, Title VII provides the legal framework.
Freedman is responsible for making out a prima facie case
that (1) he is in a protected class, (2) that MCI took an
adverse employment action against him and (3) that MCI
took the adverse employment action because of his member-
ship in a protected class. See Brown v. Brody, 199 F.3d 446,
452 (D.C. Cir. 1999). It is undoubted that Freedman is a
member of a protected class. The contest is in whether he
can demonstrate adverse employment actions taken because
of his protected status.
Freedman sees discrimination in the following occurrences.
First, he claims that his assignment to the night shift was an
act of discrimination. Second, he perceives discrimination
against him in training opportunities. In a third, and related,
complaint, he claims that he was subject to disparate treat-
ment regarding MCI's mentorship program. Fourth, he
claims that he was denied the use of computers and tools
during his tenure. Fifth, he claims that he was given inap-
propriate assignments. Sixth, he thinks he was denied one-
on-one feedback from supervisors given to other employees.
Seventh, he claims that he was badly treated by Jeff Porter.
Eighth, and finally, he contends that he was discharged
because the joint operation of the other actions he describes
made him underqualified and ripe for discharge. We con-
clude that summary judgment was appropriate because each
of the activities complained of, taken alone or collectively,
fails to rise to the level of an adverse employment action,
lacks evidence of disparate treatment, or both.
A.
Consider first the problem of Freedman's assignment to
the night shift. Freedman contends that he was transferred
to the night shift because of his religion. Specifically, he
contends that Porter moved him to the night shift in retalia-
tion for his request for time off for Jewish holidays. The
disparate treatment, according to Freedman, was that NSEs
were not transferred to the night shift unless they agreed to
go. Since Freedman objected to being moved, he contends
that he was treated both adversely and differently than his
co-workers.
The district court, relying on our decision in Brown, con-
cluded that Freedman had not suffered an adverse employ-
ment action because the transfer to the night shift was lateral
and there was no corresponding decrease in salary or bene-
fits. See Freedman v. MCI, No. 98-2753, slip op. at 15
(D.D.C. Aug. 24, 2000). We think that this may read our
decision in Brown too broadly. In Brown, we held that a
purely lateral transfer was not, in itself, an adverse employ-
ment action unless "there are some other materially adverse
consequences affecting the terms, conditions, or privileges of
[the plaintiff's] employment ..." Brown, 199 F.3d at 457.
Thus, it is not enough to ask whether the transfer was purely
lateral. We must also ask if other changes in terms, condi-
tions, or privileges followed from the transfer. It is hard to
say that transfer to the night shift would not constitute such a
change, at least in conditions or privileges. Freedman testi-
fied that the change in hours interfered with his education.
Further, the fact that Freedman received a pay differential
for working on the night shift does not, as the district court
held, necessarily demonstrate that he was not adversely
affected by the change. Rather, it could demonstrate that
the night shift was an undesirable assignment.
Freedman fails to make out a claim of discrimination
because he has not established that he was treated differently
than other employees because of his religion. MCI contends
that Freedman's transfer to the night shift can be explained
by Porter's conclusion that Freedman would receive better
training on the night shift. In a case such as this, where the
plaintiff claims discrimination and the defendant offers evi-
dence of a legitimate reason for an adverse action, the burden
shifts to the plaintiff to produce evidence rebutting the em-
ployer's legitimate reason. See Texas Dep't of Cmty. Affairs
v. Burdine, 450 U.S. 248, 252-53 (1981); Cones v. Shalala,
199 F.3d 512, 516 (D.C. Cir. 2000). Freedman offered no
evidence that the proffered reason was a pretext. Specifical-
ly, in his statement to the district court of disputed facts,
Freedman suggested that the pace of the night shift was
more hectic and that technicians on the night shift were
expected to have more skills in different areas. While there
may be a genuine factual dispute about whether the work on
the night shift was more or less hectic or demanding, it still
does not answer the fundamental argument made by MCI:
"Porter hoped that he would have a better opportunity to
progress more quickly by working closely with some of the
better technicians who were on the mid shift." Porter testi-
fied that he transferred Freedman because he had more
confidence in the night shift technicians' ability to train
Freedman, who had not responded well to training on the day
shift. Freedman presented no evidence to rebut this.
Freedman contends that, quite apart from the question
whether he was assigned to the night shift for a legitimate
reason, he was treated differently because he was forced to
switch to the night shift without his acquiescence. In order
to survive a summary judgment motion, a plaintiff must have
more than a scintilla of evidence to support his claims. See
Anderson, 477 U.S. at 252. Freedman has failed to meet this
burden for establishing his contention that workers were not
assigned to the night shift without their permission. Freed-
man marshals little evidence to show this fact. He cites one
employee's affidavit attesting to the fact that Porter once
asked him if he would work the night shift and did not assign
him to the night shift when he refused. He also cites the
deposition of Charles Moon. Moon describes an incident in
which Jeff Porter told him that he needed to work the night
shift and Moon agreed. However, Moon indicated that he
interpreted Porter's statement to mean that he could have
declined. Finally, he cites to the deposition of Jeffrey
Spriggs, who said that Porter "usually works out the shifts
according to your preference. And that at that time the
needs of the business will warrant what we have to work." If
anything, this final piece of testimony suggests that Porter
made efforts to assign people the times that they desired, but
that business needs may have trumped those desires. The
other two pieces of evidence merely demonstrate that Porter
offered workers a choice on distinct occasions. As a whole,
they hardly rise to the level of demonstrating the existence of
a policy against assigning people to the night shift against
their wishes.
B.
Freedman's claim that he was denied intensive one-on-one
training given to other technicians is similarly flawed. MCI's
training program relied heavily on hands-on training in which
a newly hired NSE would learn by working with more
experienced NSEs. Freedman claims that he was denied the
training opportunities offered to other technicians because he
was assigned to train with relatively inexperienced NSEs,
David Swithers and Peter Carlin.
The district court found that the differences in training
between Freedman and other technicians were " 'marginal
distinctions with uncertain consequences' " that could not
support a discrimination claim. Freedman, slip op. at 14
(quoting Millburn v. West, 854 F. Supp. 1, 14 (D.D.C. 1994)).
While a denial of training may rise to the level of an adverse
employment action, see Turlington v. Atlanta Gas Light Co.,
135 F.3d 1428, 1436 n.16 (11th Cir. 1998); see also 42 U.S.C.
s 2000e-2(d) (barring employers from discriminating in "ad-
mission to, or employment in, any program established to
prove apprenticeship or other training"), we agree with the
district court that there is insufficient evidence to demon-
strate that Freedman was treated differently than his peers.
The essence of his claim is that he was assigned to less
experienced NSEs for training. Swithers indicated that he
joined MCI in October 1996, so he had about six months'
experience when he began training Freedman. It is true that
some other technicians were assigned to more experienced
partners. LaTaryn Dexter, for one, was assigned to Gary
Hobson, who had been with MCI for about twelve years.
However, the evidence also shows that many of Freedman's
peers were trained by NSEs who had about as much or less
training than Swithers. Swithers himself was trained by
Philip Cofer when he started in October 1996. At that point,
Cofer had been a NSE for a scant four months. Kent Rice
was also trained by Swithers, but in March 1997, when
Swithers had been employed for only four months. Sherry
Porter, who joined MCI only a couple of weeks after Freed-
man was also trained by Swithers and reports that "[t]his
training [was] extremely important to my being able to do my
job."
Nor does the evidence support a claim that Freedman was
hobbled by a training period shorter than those afforded to
other NSEs. The other NSEs report training with another
employee for times ranging from two weeks to four months.
Sherry Porter, who was hired at about the same time as
Freedman, reports that she trained for about a month, a span
of time decidedly similar to the training period Freedman
received from his hire date of May 12 to the date he started
on the night shift, June 9. This, of course, does not even
include the additional training that Freedman was expected
to receive on the night shift.
C.
In a similar vein, Freedman claims that he was denied the
benefits of a mentorship program enjoyed by other MCI
employees. The mentorship program was designed to pro-
vide additional training to new NSEs. Under the program,
experienced engineers from other MCI locations visited the
Washington terminal and assisted newer workers while more
experienced technicians were occupied with other tasks.
Again, assuming that a training program is a condition or
term of employment, Freedman has failed to demonstrate
that he was treated differently with regard to this particular
training program. Freedman reports that he received 10 to
15 hours of mentoring from Scott Huff during one week on
the night shift. (He was evidently well enough satisfied by
this experience that he sent an e-mail to Leo Smith, thanking
him for the opportunity.) Both Sherry Porter and Kent Rice
report that they were mentored for one week. There is
nothing in either the Kent Rice or Sherry Porter affidavit to
indicate that they spent eight hours per day with the mentor.
Indeed, that would be a rather strange outcome in light of the
unrebutted testimony by MacDonald to the effect that men-
torships were not given to individuals, but that a mentor was
essentially shared by whichever new NSEs were working on
a particular shift. Because Freedman has failed to raise the
necessary evidence of discriminatory treatment, his claim
here fails.
D.
There is likewise no way to conclude on this record that
Freedman was treated differently regarding access to tools
and computers. Freedman complained in the district court
that MCI had violated Title VII "by (a) failing to provide
plaintiff with a work station, [and] (b) failing to provide
plaintiff with tools needed to perform his duties." Compl.
p 43. It seems beyond dispute that, when Freedman began
work at MCI, he was not assigned a computer for his
personal use. Freedman's claim of discrimination rests on
his belief that everyone else was assigned a computer, and he
was not.
However, in the context of the other evidence in the case,
Freedman's mere belief that others were given access to
computers while he was denied is insufficient for his claim to
survive summary judgment. See Hall v. Giant Food, Inc.,
175 F.3d 1074, 1079-80 (D.C. Cir. 1999). There is evidence of
a shortage of computers on the day shift. Freedman himself
acknowledges that this shortage meant that some people were
given access to computers and others were not. Cf. Hall, 175
F.3d at 1080 (where plaintiff did not even dispute existence of
neutral policy explaining his treatment, employers explana-
tion is "credible and unrefuted"). In essence, the MCI
terminal appeared to operate as sort of a free market: those
who had tasks to perform on a computer would wait until one
became available, perform their tasks and move on to other
business. The affidavits that Freedman submitted to support
his complaint bear this out. Dexter and Rice both report that
they had to share computer access during their initial training
periods and beyond. Sherry Porter indicated that she shared
her workstation until, like Freedman, she was transferred to
the night shift. While MCI's approach to managing its
employees and resources may have been less than ideal, all of
the employees, Freedman included, operated under the same
system. Since Title VII is designed to remedy discrimina-
tion, not poor management practices, Freedman has failed to
provide evidence that would support a claim.
Though the question may be closer, the issue is essentially
the same with tools. Freedman complains that other employ-
ees were assigned sets of tools and he was not. This is true
to a point. Dexter, Rice and Swithers all report that they
were assigned tools as soon as they were employed at MCI.
However, it appears that this practice was haphazard: Jeff
Porter testified that he "gave out tools when [he] could get
them," but that he "couldn't really tell you who had tools and
who did not have tools." Like Freedman, Sherry Porter
indicated that she was initially not personally assigned a set
of tools.
Much as it did with access to computers, MCI expected
employees to share resources to complete tasks. Jeff Porter
testified that "tools were available on the floor. One need
only to open a desk drawer and you can usually find all the
tools you need." Freedman's testimony on the matter is
contradictory. In his affidavit, he contends that "I had
difficulty in obtaining use of a computer, workstation, and
tools from other employees" and that "[t]his interfered with
my work...." However, in his deposition, he indicates that
he was able to borrow the necessary tools from other employ-
ees (though sometimes with a wait). We need not resolve the
contradiction, though. The evidence is clear that Sherry
Porter, who was hired at roughly the same time as Freedman
was not given her own set of tools until she had worked at
MCI for three months. That Freedman was not personally
assigned a set of tools in his first few months could hardly
indicate that he was treated differently than his peers.
It is true that Freedman was not assigned a set of tools
upon his return to MCI in October. However, by this point
in his tenure with MCI, his assignments had changed.
Though there appears to be some confusion about his actual
assignment, Freedman was assigned to work either in a
group called "install" or a group that was in transition from
"install" to "maintenance." Though the record does not
illuminate the differences between these groups of tasks, it is
clear that while working on the daytime "install" task, Freed-
man would only occasionally need tools in order to perform
wiring tasks. Work requiring such tools was generally per-
formed at night. Thus, even assuming that Freedman was
denied access to tools after he returned from his illness in
October, the interference with his work was minimal, and
could not rise to the level of an adverse employment action.
E.
Freedman also complains that he was given inappropriate
assignments--"junk jobs" in his terms. Specifically, he
claims that he was given special tasks--such as inventorying
parts and teaching classes--not given to other workers. As-
suming, as we must, the truth of this charge, we cannot say
that he was unlawfully discriminated against. Quite simply, a
temporary assignment to a less desirable task does not create
liability under Title VII unless it results in a diminution in
pay or benefits or affects such things as future employment
opportunities "such that a reasonable trier of fact could
conclude that the plaintiff has suffered objectively tangible
harm." Brown, 199 F.3d at 457. There is no evidence to
suggest that Freedman was harmed by his temporary assign-
ment to tasks he found unpleasant or undesirable, and
"[m]ere idiosyncracies of personal preference are not suffi-
cient to state an injury." Id.
F.
Freedman's complaint that he received inadequate feed-
back similarly fails to rise to the level of demonstrating an
adverse employment action. Freedman's complaint stems
from the quarterly performance reviews that MCI employees
received from supervisors. Porter reviewed Freedman's per-
formance twice--once on July 15, 1997, and again on Novem-
ber 4, 1997. Freedman contends that both of these sessions
were inadequate because Porter did not provide Freedman
with adequate guidance or feedback regarding his job perfor-
mance.
We agree with the district court that, even if Freedman's
evaluations were less complete than those given his co-
workers, those deficiencies could not constitute a sufficient
change in the terms and conditions of his employment to
support a claim. See Freedman, slip op. at 13-14. In Brown,
we wrote that a negative performance evaluation did not rise
to the level of an adverse employment action. See Brown,
199 F.3d at 458. It is hard to fathom the logic that while a
poor evaluation is not an adverse employment action, no
evaluation is an adverse employment action. By themselves,
Freedman's allegedly limited feedback sessions cannot be
considered discriminatory changes in the terms or conditions
of his employment.
G.
Freedman's final specific complaint is that Jeff Porter
exhibited a generally nasty attitude toward him while he
worked for MCI. While Freedman does not say it in so many
words, we take this as a traditional "hostile atmosphere"
complaint. Of course, an employee may experience a work
environment so tainted with hostility that the terms and
conditions of employment may be considered changed. See
Harris v. Forklift Sys., 510 U.S. 17, 21 (1993). Often, deter-
mining whether an environment is sufficiently hostile is a
difficult task. The appropriate standard "takes a middle path
between making actionable any conduct that is merely offen-
sive and requiring the conduct to cause a tangible psychologi-
cal injury." Id.
In this case, Freedman's evidence of religious hostility is
limited. He cites a single explicit episode in which he alleges
that Jeff Porter, after negotiating with a supervisor for a
printer, said to Freedman that "Soon I'm going to be the only
one at this terminal wearing a Yarmulka." Freedman took
this as a religious slander. Even so, such a comment is
insufficient to establish an atmosphere of hostility. As the
Supreme Court has recently reminded us, a singular stray
comment does not a hostile environment make. See Clark
County Sch. Dist. v. Breeden, 121 S. Ct. 1508, 1510 (2001);
see also Faragher v. Boca Raton, 524 U.S. 775, 788 (1998);
Park v. Howard Univ., 71 F.3d 904, 906-07 (D.C. Cir. 1996).
Freedman's only other pieces of evidence are three state-
ments of co-workers regarding Porter's behavior. In his
statement of disputed facts, Freedman characterizes these
statements as demonstrating that "Mr. Porter's treatment of
plaintiff has been described by other NSE's [sic] as 'with
indifference,' 'badly and exhibited a nasty attitude towards
him,' and 'differently than other NSE's [sic].' " Plaintiff's
Local Rule 108(h) Statement of Facts as to Which There
Exists a Genuine Dispute p 3. However, Freedman over-
states the claims made by his fellow employees.
LaTaryn Dexter's affidavit indicates that Porter treated
Freedman with "indifference," but gives an acceptably non-
discriminatory explanation for his behavior: "He seemed
irritated with Mr. Freedman because he asked numerous
questions." Likewise, Sherry Porter indicated that Jeff Port-
er treated Freedman "differently." However, Sherry Port-
er's statement deals not with the atmosphere of the terminal,
but with the assignments that Freedman was given, an issue
that we already discussed. Philip Cofer stated that "Mr.
Porter treated Marshall Freedman badly and exhibited a
nasty attitude towards him." A mere "nasty" attitude exhib-
ited by a supervisor is insufficient to establish a hostile
atmosphere, especially where, as here, there is no evidence
that the "nasty" attitude is pervasive and constant. See
Phillips v. Taco Bell Corp., 156 F.3d 884, 890 (8th Cir. 1998).
H.
Freedman claims that his discharge was the result of
discrimination. He does not claim that the actual discharge
was motivated by his religion. Rather, he claims that the
collective impact of the various religiously-motivated slights
he allegedly suffered was to ensure that he was a poorly-
trained, under-performing worker ripe for discharge when
MCI reorganized. We might be persuaded by this rationale,
if there were evidence to support it. We have already
established that there is insufficient evidence to establish that
Freedman was subjected to different treatment regarding his
transfer to the night shift, his training, his access to a mentor,
his access to computers or his access to tools. The only
remaining complaints are that he was given inadequate feed-
back and that he was given inappropriate assignments. Even
if we accept Freedman's invitation to consider the "totality of
the adverse actions" taken against him, we cannot see that
the limited feedback and a few stray assignments would be
sufficient to constitute adverse action which caused his dis-
missal.1
Affirmed.
1 We have considered and rejected Freedman's other arguments.
They occasion no need for a written opinion. See D.C. Cir. R. 36(b).