United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 23, 2008 Decided December 30, 2008
No. 07-5330
MOHAMMAD S. BALOCH,
APPELLANT
v.
DIRK KEMPTHORNE, SECRETARY OF THE INTERIOR,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 03cv01207)
Robert C. Seldon argued the cause for appellant. With
him on the briefs was Molly E. Buie.
Rhonda C. Fields, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Jeffrey A.
Taylor, U.S. Attorney, and R. Craig Lawrence and Michael J.
Ryan, Assistant U.S. Attorneys.
2
Before: GRIFFITH and KAVANAUGH, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge
KAVANAUGH.
KAVANAUGH, Circuit Judge: In 1991, Mohammad
Baloch joined the Department of the Interior as one of two
Water Rights Specialists in the Office of Trust
Responsibilities at the Bureau of Indian Affairs. In the mid-
1990s, the other Water Rights Specialist departed, leaving
Baloch as the only employee in that role. For budgetary
reasons, the Department did not fill the second position for
several years. In 2001, a second Water Rights Specialist was
hired, and some of Baloch’s duties were shifted to the new
Specialist. Baloch was apparently unhappy with the new
arrangement, and he clashed with his supervisor. Baloch
eventually sued, raising discrimination, retaliation, and hostile
work environment claims under Title VII, the Age
Discrimination in Employment Act, and the Rehabilitation
Act.
On the discrimination and retaliation claims, the District
Court awarded summary judgment to the Government
because Baloch failed to show that he had suffered an adverse
action, an essential element of a discrimination or retaliation
claim. We affirm the District Court’s judgment on Baloch’s
discrimination and retaliation claims for two alternative
reasons. First, as the District Court concluded, Baloch did not
produce sufficient evidence that he suffered an adverse action.
Second, he did not produce sufficient evidence that the
Government’s asserted non-discriminatory reasons for the
actions were pretextual and that he suffered discrimination on
account of his race, religion, age, or disability, or retaliation
on account of his bringing a discrimination complaint.
3
On the hostile work environment claim, the District Court
ruled that Baloch presented insufficient evidence to support
such a claim. We affirm the District Court’s judgment on that
point as well.
I
Since 1991, Mohammad Baloch has worked as a GS-14
Water Rights Specialist in the Natural Resources Division of
the Office of Trust Responsibilities at the Bureau of Indian
Affairs. When Baloch began work in his division, there were
three professionals: a Chief and two Water Rights Specialists.
In the mid-1990s, the Branch Chief and the other Water
Rights Specialist departed, leaving Baloch as the only
professional employee in the division. For about five years,
those other positions were not filled, primarily for budget
reasons. In 2000, the Director of the Office of Trust
Responsibilities, Terrance Virden, appointed Jeffrey Loman
as the new Chief of the Natural Resources Division, and
Baloch began reporting to Loman. In May 2001, at Virden’s
direction, Loman hired Daniel Picard as a second GS-14
Water Rights Specialist. The hiring of Picard returned the
office to the same strength it had maintained before 1996 –
one Chief and two Water Rights Specialists.
In June 2001, shortly after Picard’s hiring, Baloch filed
an informal administrative complaint alleging discrimination
because of race, religion, age, and disability. In August 2001,
Baloch filed a formal complaint with the Department of the
Interior.
In the ensuing months and years, Baloch and his
supervisor Loman clashed. Loman issued “letters of
counseling” to Baloch in January 2002 and March 2003 and a
4
“letter of reprimand” in April 2003. He imposed sick leave
restrictions on Baloch in February 2003 and renewed them in
August 2003. He proposed that Baloch be suspended for two
days in September 2003 and for 30 days in January 2004, and
he assisted a grievance official by drafting a decision on the
latter proposal. He gave Baloch a performance review of “not
achieved” in October 2003. The two engaged in verbal
altercations in February, March, August, and October 2003.
On one occasion, Loman allegedly threatened to have Baloch
arrested, led out of the building in handcuffs, and jailed.
In June 2003, Baloch sued in U.S. District Court for
discrimination, retaliation, and hostile work environment in
violation of Title VII of the Civil Rights Act, 42 U.S.C.
§ 2000e-16, the Age Discrimination in Employment Act, 29
U.S.C. §§ 621 et seq., and the Rehabilitation Act, 29 U.S.C.
§§ 701 et seq. (Baloch’s administrative complaint was
subsequently dismissed because the Department of the
Interior determined that the District Court would address the
same issues.)
As to the discrimination and retaliation claims, the
District Court granted the Government’s motion for summary
judgment, concluding that Baloch failed to show that he had
suffered adverse actions as required to bring a claim under
those employment discrimination laws. The District Court
also concluded that Baloch had not produced sufficient
evidence of an objectively hostile work environment for
purposes of that claim. Baloch appeals, and our review is de
novo.
II
We first address Baloch’s discrimination claim. Under
Title VII, the ADEA, and the Rehabilitation Act, the two
5
essential elements of a discrimination claim are that (i) the
plaintiff suffered an adverse employment action (ii) because
of the plaintiff’s race, color, religion, sex, national origin, age,
or disability. See 42 U.S.C. § 2000e-16(a); 29 U.S.C. §§ 621
et seq.; 29 U.S.C. §§ 701 et seq.; Adeyemi v. District of
Columbia, 525 F.3d 1222, 1226 (D.C. Cir. 2008); Brady v.
Office of Sergeant at Arms, 520 F.3d 490, 493 (D.C. Cir.
2008); see also Brown v. Brody, 199 F.3d 446, 452 (D.C. Cir.
1999) (race discrimination under Title VII); Barnette v.
Chertoff, 453 F.3d 513, 515 (D.C. Cir. 2006) (age
discrimination under the ADEA); Breen v. Dep’t of Transp.,
282 F.3d 839, 841 (D.C. Cir. 2002) (disability discrimination
under the Rehabilitation Act). A plaintiff must prove both
elements to sustain a discrimination claim.
A
In most employment discrimination cases that reach
federal court, there is no dispute that the employee has
suffered an adverse employment action, and the sole question
is whether the action occurred because of discrimination. See
Adeyemi, 525 F.3d at 1227; Brady, 520 F.3d at 493, 494 n.2.
In this case, however, the employer also contests whether
Baloch suffered an adverse action.
Baloch alleges that the change in his substantive duties
after another Water Rights Specialist was hired constituted an
adverse employment action. The initial problem for Baloch’s
legal argument is that he was not fired or denied a job or
promotion, and he did not suffer any reductions in salary or
benefits, which are the typical adverse actions in employment
discrimination cases. See, e.g., Brown, 199 F.3d at 455-56.
To be sure, in Czekalski v. Peters, this Court said that an
adverse employment action need not entail a loss of salary,
6
grade level, or benefits if the plaintiff has “raised a genuine
issue as to whether the reassignment left [the employee] with
‘significantly different’ – and diminished – supervisory and
programmatic responsibilities.” 475 F.3d 360, 364 (D.C. Cir.
2007) (emphasis added).1 Czekalski, for example, produced
evidence that she went from overseeing 260 federal
employees, 700 contractors, 50 programs, and a $400 million
budget, to overseeing fewer than 10 employees and one
program with a minimal budget. She also went from
reporting directly to the FAA’s Associate Administrator for
Research and Acquisitions to reporting to a former peer. Id.
at 364-65. This was enough for her to overcome a summary
judgment motion and proceed to trial. Cf. Bibbs v. Bd. of
Trustees for Univ. of Ill., No. 98-3029, 1999 WL 569028, at
*2 (7th Cir. July 30, 1999) (finding significantly diminished
responsibilities where plaintiff lost supervisory and
coordination responsibilities and was left with phone, filing,
and scheduling duties).
Unlike in Czekalski, however, Baloch’s duties in the
wake of Picard’s hiring did not constitute qualitatively
inferior work requiring any less skill or knowledge. Cf.
Currier v. Postmaster General, 304 F.3d 87, 88-89 (D.C. Cir.
2002). It is true that some of Baloch’s previous
responsibilities were no longer his. But that occurred because
another Water Rights Specialist had been hired, returning the
unit to the same strength it once had. An adverse employment
action does not occur merely because an employer adds more
people to the team assigned to a particular task, particularly
1
Some courts of appeals have interpreted the adverse action
requirement more narrowly than Czekalski. See, e.g., Grayson v.
City of Chicago, 317 F.3d 745, 750 (7th Cir. 2003); Kocsis v. Multi-
Care Mgmt., 97 F.3d 876, 886-87 (6th Cir. 1996). Even under the
more generous interpretation in Czekalski, however, Baloch still has
not sufficiently shown an adverse employment action.
7
when the addition simply brings the team back to its former
numbers. Indeed, we have previously underscored our
hesitancy to engage in “judicial micromanagement of
business practices” by second-guessing employers’ decisions
about “which of several qualified employees will work on a
particular assignment.” Mungin v. Katten Muchin & Zavis,
116 F.3d 1549, 1556 (D.C. Cir. 1997). So too here. Any
reassignment of Baloch’s duties that occurred upon Picard’s
hiring did not itself constitute an adverse employment action
for purposes of a discrimination claim.
B
Even if we were to assume an adverse action, however,
Baloch did not produce sufficient evidence that his
employer’s asserted legitimate non-discriminatory reason for
hiring Picard was not the actual reason and that Baloch
suffered discrimination on an impermissible ground. See
Adeyemi, 525 F.3d at 1226; Brady, 520 F.3d at 495.2
2
For purposes of this point, we assume arguendo that Baloch
has shown an adverse action (a point that, as noted above, is
uncontested in most discrimination cases). In cases where the
employee has suffered an adverse action and the employer has
asserted a legitimate, non-discriminatory reason for that action, we
do not consider the McDonnell Douglas prima facie factors. See
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); see
also U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711,
715 (1983); Brady, 520 F.3d at 494. Rather, we ask only whether
“the employee produced sufficient evidence for a reasonable jury to
find that the employer’s asserted non-discriminatory reason was not
the actual reason and that the employer intentionally discriminated
against the employee” on an impermissible ground. Brady, 520
F.3d at 494; see also Aikens, 460 U.S. at 714-16; Adeyemi, 525
F.3d at 1226.
8
In his deposition, Virden testified that there had been two
Water Rights Specialists before budget cuts in 1996 and that
Picard’s employment simply returned the office to its
previous arrangement. Virden also explained that he hired
Picard because of BIA’s need to strengthen the budget
justification process and to install someone with a legal
background. Picard, who had a law degree, filled the gaps
that had been identified.
Because the employer asserted a legitimate, non-
discriminatory reason for the action, we consider only
whether Baloch “produced evidence sufficient for a
reasonable jury to find that the employer’s stated reason was
not the actual reason and that the employer intentionally
discriminated against [Baloch] based on” his race, religion,
age, or disability. Brady, 520 F.3d at 495. Baloch has
produced no direct evidence of discriminatory animus by the
decisionmaker and failed to produce any other evidence that
discredits the underlying reason for Picard’s hiring and the
subsequent shift in responsibilities. Therefore, even assuming
Baloch had suffered an adverse employment action, he did not
produce evidence sufficient to overcome summary judgment
on the question whether he suffered impermissible
discrimination.3
III
We next consider Baloch’s retaliation claim. Baloch
contends that the Government illegally retaliated against him
for filing an administrative complaint. He argues that the
3
With respect to the Rehabilitation Act claim, it is not clear
that Baloch showed evidence that he was disabled within the
meaning of the statute. See 29 U.S.C. § 705(20)(B). Because we
reject Baloch’s claims for other reasons, however, we need not
further address that issue.
9
District Court erred in holding “that none of the alleged
[retaliatory] measures were adverse actions.” Baloch v.
Norton, 517 F. Supp. 2d 345, 354 n.7 (D.D.C. 2007).
To prove retaliation, the plaintiff generally must establish
that he or she suffered (i) a materially adverse action
(ii) because he or she had brought or threatened to bring a
discrimination claim. See 42 U.S.C. § 2000e-3(a); 29 U.S.C.
§§ 621 et seq.; 29 U.S.C. §§ 701 et seq.; Burlington N. &
Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (internal
quotation marks omitted) (defining “materially adverse” as an
action that would have “dissuaded a reasonable worker from
making or supporting a charge of discrimination”) (quoting
Rochon v. Gonzales, 438 F.3d 1211, 1219 (D.C. Cir. 2006)).4
A
According to Baloch, Loman retaliated against him in a
variety of ways. Loman imposed sick leave restrictions –
requiring that a physician certify the problem and date of
treatment each time Baloch submitted a leave request. Baloch
asserts that the procedures made it impossible for him to take
sick leave because his physicians were too busy to write the
4
“Adverse actions” in the retaliation context encompass a
broader sweep of actions than those in a pure discrimination claim.
Due to differences in the language and purposes behind Title VII’s
retaliation and discrimination provisions, the Supreme Court
clarified in Burlington N., 548 U.S. 53, that the requirements are
distinct: Retaliation claims are “not limited to discriminatory
actions that affect the terms and conditions of employment” and
may extend to harms that are not workplace-related or employment-
related so long as “a reasonable employee would have found the
challenged action materially adverse.” Id. at 64, 68; see also 1
BARBARA T. LINDEMANN & PAUL GROSSMAN, EMPLOYMENT
DISCRIMINATION LAW 1026-27 (4th ed. 2007).
10
requisite certifications, and that they amounted to “materially
adverse” actions. But his claim is not substantiated by
evidence of any instances when the procedures led him to
forgo leave. And his leave requests, in fact, were granted
every time. Baloch thus has not shown that the restrictions
constituted materially adverse actions.
Baloch further argues that Loman’s proposed 2-day and
30-day suspensions were materially adverse actions that
tarnished his reputation and caused emotional distress. But
courts have been unwilling to find adverse actions where the
suspension is not actually served. Cf. Whittaker v. N. Ill.
University, 424 F.3d 640, 647 (7th Cir. 2005) (“[A]
suspension without pay that is never served does not
constitute an adverse employment action.”); see also Gupta v.
Fla. Bd. of Regents, 212 F.3d 571, 588 n.15 (11th Cir. 2000)
(“A threatened letter never actually written cannot constitute
an adverse employment action.”). Similarly, Loman’s
drafting of a proposed decision on a possible 30-day
suspension was not materially adverse: The decision was
reassigned to another official, and Loman’s ex parte
communications had no actual effects.
Baloch also alleges that Loman issued a letter of
counseling, letter of reprimand, and unsatisfactory
performance review as retaliation for Baloch’s discrimination
complaints. The letters, however, contained no abusive
language, but rather job-related constructive criticism, which
“can prompt an employee to improve her performance.”
Whittaker, 424 F.3d at 648 (quoting Oest v. Ill. Dep’t of
Corrections, 240 F.3d 605, 613 (7th Cir. 2001)). As for the
“not achieved” performance evaluation, performance reviews
typically constitute adverse actions only when attached to
financial harms. As the Government points out and Baloch
does not deny, Baloch had already achieved the highest step
11
for his grade as a GS-14, step 10 employee. Baloch did not
produce evidence showing that the 2003 negative
performance evaluation could affect his position, grade level,
salary, or promotion opportunities. See Weber v. Battista, 494
F.3d 179, 185-86 (D.C. Cir. 2007) (evaluations were “adverse
actions insofar as they resulted in her losing a financial award
or an award of leave”); see also Brown v. Snow, 440 F.3d
1259, 1265 (11th Cir. 2006) (“A lower score on [the
employee’s] performance evaluation, by itself, is not
actionable . . . unless [the employee] can establish that the
lower score led to a more tangible form of adverse action,
such as ineligibility for promotional opportunities.”);
Whittaker, 424 F.3d at 648 (evaluations and written warnings
were not adverse actions because none had “tangible job
consequences”) (quoting Longstreet v. Ill. Dep’t of
Corrections, 276 F.3d 379, 384 (7th Cir. 2002)).
Finally, Baloch points to Loman’s alleged profanity-
laden yelling as actionable adverse actions. As alleged,
Loman’s outbursts, though usually preceded by some
infraction on Baloch’s part, certainly seem disproportionate.
The Supreme Court, however, has emphasized that sporadic
verbal altercations or disagreements do not qualify as adverse
actions for purposes of retaliation claims: “We speak of
material adversity because we believe it is important to
separate significant from trivial harms. Title VII, we have
said, does not set forth ‘a general civility code for the
American workplace.’” Burlington, 548 U.S. at 68 (emphasis
in original) (quoting Oncale v. Sundowner Offshore Services,
Inc., 523 U.S. 75, 80 (1998)). The altercations in February,
March, August, and October 2003 between Baloch and
Loman did not meet the requisite level of regularity or
12
severity to constitute material adversity for purposes of a
retaliation claim.5
B
Even if the alleged retaliatory measures were materially
adverse actions, the Government asserted legitimate, non-
discriminatory reasons for each act, and Baloch did not
produce sufficient evidence that would discredit those reasons
and show that the actions were retaliatory. See Adeyemi v.
District of Columbia, 525 F.3d 1222, 1226 (D.C. Cir. 2008);
Brady v. Office of Sergeant at Arms, 520 F.3d 490, 494 (D.C.
Cir. 2008); Vickers v. Powell, 493 F.3d 186, 195 (D.C. Cir.
2007); Broderick v. Donaldson, 437 F.3d 1226, 1232 (D.C.
Cir. 2006).
The Government asserted that the disciplinary measures
and comments occurred only after various infractions by
Baloch. The leave restrictions were imposed because Baloch
had taken an anomalous total of 276 hours (seven weeks) of
5
In dismissing Baloch’s retaliation claim, the District Court
also relied on the fact that Baloch continued to file administrative
complaints in August, October, and November 2003, even after the
alleged actions occurred. The District Court explained that Baloch
had not been dissuaded from making charges of discrimination and
that the alleged actions therefore could not have been materially
adverse. See Baloch, 517 F. Supp. 2d at 361 (“The filing of a
complaint after an alleged instance of retaliation militates against a
conclusion that retaliation occurred, as it demonstrates that the filer
was not in fact dissuaded from protecting his rights.”). We disagree
with the District Court’s reasoning on this one point because it
appears that the court focused on Baloch’s subjective reactions
rather than on whether the objective “reasonable worker” would
have been dissuaded from making a discrimination complaint.
Burlington, 548 U.S. at 68.
13
sick leave, which included 18 days before and after holidays
and weekends and numerous eight-hour appointments. The
suspension proposals were based on Baloch’s failure to
comply with leave restrictions. The letter of counseling,
reprimand, and “not achieved” evaluation were justified by
Baloch’s disregard of Loman’s orders for a draft,
unauthorized travel arrangements, late submission of a report,
failure to secure recipient funding, unauthorized cancellation
of a credit card, and emailing of grievances about Loman to a
colleague. The verbal altercations, meanwhile, were similarly
preceded by Baloch’s failure to comply with instructions or
respect Loman’s authority. “[G]ood institutional
administration” justified disciplining Baloch for these
breaches of orders and office etiquette. Mitchell v. Vanderbilt
University, 389 F.3d 177, 182 (6th Cir. 2004).
Baloch fails to offer evidence rebutting the legitimate,
non-discriminatory reasons asserted for the various actions
Baloch complains about. Indeed, Baloch concedes the
infractions that formed the basis for his employer’s responses.
For example, Baloch responds to the alleged sick leave
violations by claiming that he submitted a leave slip that was
misplaced. He does not, however, deny that Loman never
received the slip in question, nor does he deny that he failed
to submit the required certifications on other occasions.
Similarly, Baloch admits to disregarding Loman’s orders for a
draft and merely asserts that in his opinion no meaningful
changes were necessary. Baloch likewise admits that he took
six months to secure funding for a particular client when
Loman had instructed him to act promptly and simply points
to the routine nature of funding delays. Baloch argues that he
had reasons for committing the infractions. But he did not
produce evidence sufficient to show that the Government’s
asserted reasons for the actions (even assuming that each
alleged act was materially adverse) were so ill-justified as to
14
allow a jury to conclude that they were not the actual reasons
and that he suffered retaliation for his discrimination
complaints.
Baloch separately claims that Picard did not suffer the
same disciplinary actions or verbal abuse that he did. But
given the sheer number and willfulness of Baloch’s recurrent
breaches, Picard was not similarly situated and his allegedly
disparate treatment does not give way to an inference of
retaliation against Baloch (or, alternatively, of discrimination
in the imposition of discipline).
IV
We turn finally to Baloch’s hostile work environment
claim. To prevail on such a claim, a plaintiff must show that
his employer subjected him to “discriminatory intimidation,
ridicule, and insult” that is “sufficiently severe or pervasive to
alter the conditions of the victim’s employment and create an
abusive working environment.” Harris v. Forklift Sys., Inc.,
510 U.S. 17, 21 (1993) (quoting Meritor Sav. Bank, FSB v.
Vinson, 477 U.S. 57, 65, 67 (1986)); see also Barbour v.
Browner, 181 F.3d 1342, 1347-48 (D.C. Cir. 1999). To
determine whether a hostile work environment exists, the
court looks to the totality of the circumstances, including the
frequency of the discriminatory conduct, its severity, its
offensiveness, and whether it interferes with an employee’s
work performance. See Faragher v. City of Boca Raton, 524
U.S. 775, 787-88 (1998).
In this case, none of the comments or actions directed at
Baloch expressly focused on his race, religion, age, or
disability – unlike in some hostile work environment cases.
Moreover, the disciplinary actions and workplace conflicts
were not so “severe” or “pervasive” as to have changed the
15
conditions of Baloch’s employment. His claims of harm are
not supported by evidence of tangible workplace
consequences, whether financial, physical, or professional.
His allegations of insult are undercut by the legitimate reasons
and constructive criticism offered in the letters of counseling
and reprimand. His claims of public humiliation do not match
the evidence. And his assertion of pervasive and constant
abuse is undermined by the sporadic nature of the conflicts.
Baloch clearly had several verbal clashes with his supervisor
in the workplace. But the totality of circumstances presented
in this record does not rise to the level necessary to support a
hostile work environment claim.
***
We affirm the judgment of the District Court.
So ordered.