Freeman v. Potter

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 06a0733n.06
Filed: October 4, 2006

No. 05-6311

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

JERRY P. FREEMAN )
) ON APPEAL FROM THE
Plaintiff-Appellant, ) UNITED STATES DISTRICT
) COURT FOR THE MIDDLE
v. ) DISTRICT OF TENNESSEE
)
JOHN E. POTTER, POSTMASTER GENERAL, ) OPINION
UNITED STATES POSTAL SERVICE )
)
Defendant-Appellee. )

BEFORE: SILER, CLAY, and McKEAGUE, Circuit Judges.

McKEAGUE, Circuit Judge. Plaintiff Jerry Freeman sued the Postmaster General of the

United States Postal Service (the “Postal Service”), alleging that the Postal Service discriminated

against him by failing to transfer him to another position, in violation of the Age Discrimination in

Employment Act of 1967 (“ADEA”), 29 U.S.C. § 633a, and Title VII of the Civil Rights Act of

1964, 42 U.S.C. § 2000e-16. The district court granted summary judgment in favor of the Postal

Service, finding that Freeman did not suffer an adverse employment action, and therefore did not

carry his prima facie burden. Freeman appealed.

For the reasons set forth below, we affirm.
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Freeman v. Potter

I.

Freeman was Supervisor of Customer Service at the Murfreesboro, Tennessee Post Office

and had worked for the Postal Service for more than twenty-five years when he applied for the

position of Postmaster of Sewanee, Tennessee. He was fifty-two years old at the time.

Salaried employees of the Postal Service each have a ranking on the “Executive and

Administration Schedule” or “EAS,” a pay and duty schedule. As a Supervisor in Murfreesboro,

Freeman held a ranking of EAS-16. The Sewanee position was ranked as an EAS-15. This meant

that the salary for the Postmaster position was lower than the salary he received in his current

Supervisor position.

In his application for the Postmaster position, Freeman listed the following highlights of his

duties as a Supervisor:

• supervise and schedule thirty-nine rural carriers on a daily basis;

• supervise five full-time and five part-time window clerks;

• supervise several Special Event Programs, including special cancellations for the
Civil War, the Stones River National Battlefield, and the Uncle Dave Macon Days
stamps; and

• was responsible for bar code sorter machines, qualifying part-time distribution
clerks, and various educational tours.

During his deposition, Freeman estimated that an EAS-15 Postmaster might have responsibility for

two rural carriers, a box section, and two or three window clerks.

Freeman grew up ten or twelve miles from Sewanee and knew many of the people who lived

there. He testified that he sought the lower-paying position because it would give him better

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advancement opportunities in the future. He noted that Postmasters have their own meetings, and,

if selected, he would be able to participate in those meetings. He also wanted the opportunity to run

his own office, explaining that it would have less pressure. He testified that he had planned to apply

for a higher-level Postmaster position within a couple of years of becoming the Sewanee Postmaster.

Bonnie Layne, a Postmaster near Sewanee, testified by affidavit that the Sewanee Postmaster

position was “a unique and desirable position.” She further testified:

In general, postmaster positions in the United States Postal Service are considered
desirable and are sought after even in preference to supervisor positions. This is
because as a postmaster you are the on site person responsible for running the
location and have no supervisor on site to whom you must report. Further, in my
experience, being a postmaster is considered prestigious. Because of this, it does not
surprise me that a supervisor in the United States Postal Service would be willing to
take an initial marginal decrease in salary to obtain a postmaster position.

She also noted that the proximity to a small university made the position “unique and more

prestigious.”

Another applicant for the Sewanee position, Wanda Eisler (also an EAS-16 at the time),

testified that she wanted the job because being a Postmaster was her ultimate goal. She explained

that she wanted a small office.

The Postal Service did not select Freeman or Eisler for the Postmaster position, offering it

instead to a thirty-one year old female. Freeman filed an administrative complaint, alleging age and

reverse-sex discrimination. The ALJ determined that the Postal Service did not discriminate against

him based on his sex, but agreed with Freeman that it discriminated against him based on his age.

As the remedy, the ALJ required that the Postal Service offer Freeman the Sewanee Postmaster

position. It did so, but Freeman declined the position, opting instead to sue the Postal Service,

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alleging workplace discrimination and seeking back pay and benefits, front pay, compensatory

damages for emotional and reputational injury, attorney fees, and expenses.

II.

A. Fed. R. Civ. P. 56

The court reviews de novo the district court’s grant of summary judgment. Rowan v.

Lockheed Martin Energy Sys., Inc., 360 F.3d 544, 547 (6th Cir. 2004) (citations omitted). Summary

judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions

on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact

and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). The

court reviews the evidence and draws all reasonable inferences in favor of the nonmoving party.

Rowan, 360 F.3d at 547 (citation omitted). “That is not to say that it only reviews evidence

favorable to the non-moving party. Instead, it must review all the evidence in the record.” Id.

(citation omitted).

B. Adverse Employment Actions – In General

The ADEA prohibits federal employers, including the Postal Service, from discriminating

against an employee “based on age.” 29 U.S.C. § 633a. Title VII likewise prohibits discrimination

based on, among other things, an individual’s gender. 42 U.S.C. § 2000e-16(a). The legal standards

governing both types of discrimination are similar. See Kocsis v. Multi-Care Mgmt., Inc., 97 F.3d

876, 885 (6th Cir. 1996).

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A plaintiff may establish age- or gender-based discrimination in two different ways. He may

offer direct evidence of the employer’s discriminatory motive by producing “evidence, which, if

believed, requires the conclusion that unlawful discrimination was at least a motivating factor in the

employer’s actions.” Mitchell v. Vanderbilt Univ., 389 F.3d 177, 181 (6th Cir. 2004) (quoting Wexler

v. White’s Fine Furniture, Inc., 317 F.3d 564, 570 (6th Cir.2003) (en banc)). If he cannot come

forward with direct evidence of a discriminatory motive, he may offer indirect and circumstantial

evidence of such a motive under the familiar McDonnell-Douglas burden-shifting approach. Id.

(citation omitted). Under the latter approach, the employee must show that (1) he is a member of

a protected class; (2) he was subjected to an adverse employment action; (3) he was qualified for the

position sought; and (4) he was treated differently from similarly situated employees outside the

protected class. McClain v. NorthWest Cmty. Corr. Ctr. Judicial Corr. Bd., 440 F.3d 320, 332 (6th

Cir. 2005). The elements of a prima facie case are fact-specific and differ from case to case. Jones

v. Sch. Dist. of Philadelphia, 198 F.3d 403, 411 (3d Cir. 1999).

The sole issue presented to us on appeal is whether Freeman has offered sufficient evidence

to create a genuine issue of material fact that he suffered an adverse employment action. An adverse

employment action “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.” Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998)

(citations omitted). Such action usually “inflicts direct economic harm.” Id. at 762. An employment

action must amount to “a materially adverse change” in the terms or conditions of employment to

be actionable. Kocsis, 97 F.3d at 885; see also Mitchell, 389 F.3d at 182. The action “must be more

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disruptive than a mere inconvenience or an alteration of job responsibilities.” Kocsis, 97 F.3d at 886

(internal quotations omitted). A “de minimis employment” action is “not materially adverse and,

thus, not actionable.” Bowman v. Shawnee State Univ., 220 F.3d 456, 462 (6th Cir. 2000). In other

words, a “bruised ego” caused by trivial employment actions is not sufficient. Kocsis, 97 F.3d at 886

(citing Flaherty v. Gas Research Inst., 315 F.3d 451, 456 (7th Cir. 1994)).

Yet, an employee need not have suffered one of the “ultimate employment actions” listed

above (e.g., termination, demotion, failure to promote, etc.) to have a viable claim of discrimination.

A material adverse action may consist of a less distinguished title, diminished options for

advancement, or other unique indices. Bowman, 220 F.3d at 461-62; Hollins v. Atl. Co., 188 F.3d

652, 662 (6th Cir. 1999). Importantly, however, an individual’s “subjective impression concerning

the desirability of one position over another” is insufficient to render an employer’s action materially

adverse. Mitchell, 389 F.3d at 183; see also Policastro v. Nw. Airlines, Inc., 297 F.3d 535, 539 (6th

Cir. 2002). Rather, we determine whether a particular employment action was “objectively

intolerable to a reasonable person.” Policastro, 297 F.3d at 539; see also O’Neal v. City of Chicago,

392 F.3d 909, 913 (7th Cir. 2004) (explaining that an employee’s “purely subjective preferences for

one position over another” does not “justify trundling out the heavy artillery of federal

antidiscrimination law” (internal quotations omitted)); Brown v. Brody, 199 F.3d 446, 457 (D.C. Cir.

1999) (explaining that an employee must suffer “objectively tangible harm” to have a viable

discrimination claim).

In short, the action must have a “significant detrimental effect” on the employee’s status,

Boone v. Goldin, 178 F.3d 253, 256 (4th Cir. 1999), as evidenced by objective factors, not subjective

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impressions.

C. Did Freeman Suffer an Adverse Employment Action?

To support his claim, Freeman points to a single action by the Postal Service: its decision not

to transfer him to the Sewanee Postmaster position. As in prior cases involving a request for a new

position within the same employer organization, we view Freeman’s claim as one grounded on a

failure to promote/transfer, as opposed to one based on a failure to hire.1 See, e.g., Browning v. Dep’t

1
In his dissent, Judge Clay suggests that we are breaking new ground by requiring that
Freeman present evidence that the Postal Service denied him a promotion or took some other
tangible action that had a significant detrimental effect on him, and not just that it denied him a
transfer. On the contrary, it is Judge Clay who proposes, in effect, that we depart from this circuit’s
precedent, as well as the guidance provided by the Supreme Court.

In Mitchell, an earlier, published decision of this court to which we are bound to follow, a
medical school professor sued his university employer for age discrimination. As part of his prima
facie case, the plaintiff relied upon, among other things, his non-selection for an internal transfer to
become the medical director of a laboratory. The court found the plaintiff’s evidence to be
insufficient to establish his prima facie case, explaining:

Non-selection for a position of employment is not always an adverse employment
action. In cases where the sought position is a lateral transfer, without additional
material benefits or prestige, it would be improper to conclude that a denial of such
a transfer would be a materially adverse action. See Sherman v. Chrysler Corp., 47
Fed. Appx. 716, 721-22 (6th Cir. 2002) (holding that an employee who failed to
introduce evidence showing that denials of lateral transfer requests resulted in
materially adverse changes in terms of employment could not establish adverse
employment action).

Mitchell, 389 F.3d at 183. Simply put, the Mitchell decision cannot be squared with the dissent’s
approach.

Even if we were not bound by Mitchell, the proper approach would still be the one we
employ here. The Supreme Court has provided guidance to lower courts on what constitutes an

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of Army, 436 F.3d 692, 695-96 (6th Cir. 2006); White v. Columbus Metro. Hous. Auth., 429 F.3d

232, 240 (6th Cir. 2005); Mitchell, 389 F.3d at 183.

In general, a lateral transfer, or the refusal to make a lateral transfer, is not a materially

adverse action. Mitchell, 389 F.3d at 183.2 Freeman offers no evidence that the refusal-to-transfer

adverse employment action. In Ellerth, the Supreme Court did not limit the category of such actions
to the obvious ones of “hiring” and “firing,” but also, among other actions, “failing to promote.” 524
U.S. at 761. As a textual matter, the Court’s inclusion of “failing to promote” in this category would
have been superfluous if it intended for lower courts to treat all claims involving the denial of a
requested internal transfer as simply “hiring” claims. Moreover, it would breed considerable
confusion in the law to conflate external hiring and internal transfers into one broad “hiring” camp,
especially when the Supreme Court has counseled (at least implicitly) otherwise.

Thus, we agree with the dissent that the prima facie test is a “flexible” one, and must be
applied in an “orderly way to evaluate the evidence.” Dis. at 2-3. The test must be tailored to meet
the demands of the particular claim before the court. In the instant action, we have tailored the prima
facie test to the claim before us, using our own precedent and the Supreme Court’s guidance on what
constitutes an adverse employment action. To try to consider Freeman’s claim under some broad,
rigid “hiring” framework would, in effect, be to force a square peg into a round hole.

Finally, we note that Freeman did not argue on appeal that his was a failure to hire claim.
Rather, he repeatedly referred to the “unique” and “prestigious” nature of the position, and cited
several transfer-related cases in support.
2
Given the fact-specific nature of the inquiry, there are a number of cases that have concluded
that a transfer or refusal-to-transfer did not constitute an adverse employment action, and a number
that have found such employer action was adverse. Compare O’Neal, 392 F.3d at 912 (rejecting for
lack of “objective evidence” the employee’s claims that her involuntary transfer resulted in a less
prestigious job and negatively affected her advancement opportunities); Mitchell, 389 F.3d at 182
(finding no adverse action from a professor’s allegations that the university “deprived him of a
graduate research assistant during one summer, revoked his mentor status in the M.D./Ph.D graduate
program, and removed him from his position of Medical Director of Pathology Laboratory
Services”); Williams v. R.H. Donnelley, Corp., 368 F.3d 123, 128 (2d Cir. 2004) (finding no adverse
action when employee wanted transfer for personal reasons and transfer would have resulted in lower
pay); Banks v. E. Baton Rouge Parish Sch. Bd., 320 F.3d 570, 575 (5th Cir. 2003) (“[A] decision
made by an employer that only limits an employee’s opportunities for promotion or lateral transfer
does not qualify as an adverse employment action under Title VII.”); Momah v. Dominguez, No. 03-

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denied him a promotion, at least in any official sense. He points to no policy or procedure of the

Postal Service suggesting that it would consider a move from an EAS-16 Supervisor to an EAS-15

Postmaster a promotion. The Sewanee Postmaster position paid less, and thus, from a purely

financial perspective, the transfer would have been a demotion. Freeman argues, however, that in

spite of the loss of pay, the Sewanee Postmaster position was unique for two main reasons: (1) it was

prestigious; and (2) the experience would have given him opportunities for higher-paying Postmaster

positions. The two factors are analyzed in turn.

1. Prestige

Freeman cites this court’s statement in Mitchell that “[i]n cases where the sought position

is a lateral transfer, without additional material benefits or prestige, it would be improper to

conclude that a denial of such a transfer would be a materially adverse action.” 389 F.3d at 183

2561, 2006 U.S. App. LEXIS 6669, at *30-31 (6th Cir. Mar. 15, 2006) (finding no adverse action
when requested transfer would have been a demotion and was sought for personal reasons); Wanchik
v. Great Lakes Health Plan, Inc., 6 F. App’x 252, 258-59 (6th Cir. 2001) (finding no adverse action
when corporate acquisition resulted in the employee transferring from CEO of the target company
to vice president of the acquiring company), with Jones, 198 F.3d at 411-12 (finding an adverse
employment action when a teacher was transferred to a “difficult school” teaching “less desirable
science classes” and was passed over for promotion); Davis v. City of Sioux City, 115 F.3d 1365,
1369 (8th Cir. 1997) (upholding jury verdict, explaining that “[t]he jury apparently put more weight
on Davis’s evidence that the new position lacked supervisory status, had fewer opportunities for
salary increases, and offered Davis little opportunities for advancement.”); Bryson v. Chicago State
Univ., 96 F.3d 912, 916 (7th Cir. 1996) (concluding that an employee’s “sudden loss” of the title
Special Assistant to the Dean and her banishment from university committee work could constitute
adverse employment action); de la Cruz v. N.Y. City Human Res. Admin. DSS, 82 F.3d 16, 21 (2d
Cir. 1996) (finding that the involuntary transfer of a caseworker from the adoption unit to the foster
care unit could be an adverse employment action because of the lower prestige and “little opportunity
for professional growth” in the new unit, but also noting that the employee’s case was “quite thin”).

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(citation omitted, emphasis added). Other courts have similarly noted that “prestige” and “loss of

title” can amount to adverse employment action under some circumstances. See, e.g., Bryson, 96

F.3d at 916; de la Cruz, 82 F.3d at 21.

“Prestige,” much like beauty, is in the eye of the beholder. It is the “standing or estimation

in the eyes of people.” WEBSTER ’S THIRD NEW INTERNATIONAL DICTIONARY (1986). Yet, because

we rely upon objective factors, rather than subjective impressions, we must look underneath an

assertion of “prestige” to determine whether there is anything concrete to substantiate it. For

example, does a particular title entail greater responsibilities, have unique characteristics, or require

special training or education? See, e.g., White v. Burlington N. & Santa Fe Ry. Co., 364 F.3d 789,

803 (6th Cir. 2004) (en banc) (noting that the higher level of qualifications needed for a position was

an indication of the position’s prestige), aff’d, 126 S. Ct. 2405 (2006); Ledergerber v. Stangler, 122

F.3d 1142, 1144 (8th Cir. 1997) (explaining that negative public perception alone does not amount

to an adverse employment action). Further, an employee must show that the target position had, in

some sense, more prestige than the employee’s current position. If the two positions have the same

level of prestige, the refusal to transfer the employee from one prestigious position to an equally

prestigious position cannot have an actionable effect on the employee’s career. See Kocsis, 97 F.3d

at 887 (noting the failure of the employee “to make a real attempt to compare the two positions”

before filing suit).

Here, Freeman offers several reasons why the Postmaster position in general, and the one in

Sewanee in particular, was prestigious. He testified that as a Postmaster, he would be “in the

limelight” in terms of controlling the office, making budgets and plans, and increasing revenues.

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Layne reiterated this, as well as stating that the position’s proximity to a small university also made

it prestigious.

Being the head of an office with responsibility for its budget and plans can be prestigious.

Of course, so can being a supervisor in a large office with responsibility for thirty-nine carriers, ten

window clerks, and various special event programs and educational tours. Moreover, the fact that

he was paid more as a Supervisor in Murfreesboro is at least some evidence of its prestige vis-à-vis

the Sewanee Postmaster position. While Layne testified that Postmaster positions are considered

desirable and are sought after even in preference to supervisor positions, this is simply a statement

about postmaster positions in general. She did not offer any specific comparison between the

prestige of the two particular positions at issue here – Freeman’s Supervisor position (or one similar

to it in terms of size of office and responsibilities/qualifications) against the Sewanee Postmaster

position.

The evidence that the Sewanee Postmaster position is prestigious because it is located near

a small university is entirely conclusory. Freeman provides no evidence or explanation of why a

Postmaster who works in an office serving a university is more prestigious than the same position

in a neighboring town or city without a university. There is no description of additional or special

tasks the Postmaster must perform for the school, special access the Postmaster might have to school

facilities, or any other objective indicia of prestige bestowed upon the Postmaster by the Postal

Service, university, or community. Moreover, unlike a typical vendor for a college or university, the

Postmaster cannot tout its office’s selection by the school as some sign of excellence, given that the

Postal Service has a federally-chartered monopoly in delivering mail. The position may be more

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desirable because it is located in a university town with, for example, ready access to collegiate

athletic events, arts, community lectures, etc., but simply because a position is desirable to someone

does not make the failure to get it actionable. Mitchell, 389 F.3d at 183.

It is Freeman’s burden to show that the refusal-to-transfer resulted in him having to stay in

a less prestigious position. He has not met his burden.

2. Experience

Freeman also argues that the experience he would have gained as the Sewanee Postmaster

would have given him more opportunities for future promotion. The refusal to transfer, like an

involuntary transfer, can amount to an adverse employment action if it significantly reduces the

employee’s career prospects. See, e.g., O’Neal, 392 F.3d at 911. The Postal Service provided

numerous examples of Supervisors at or below Freeman’s EAS rank moving to the position of

Postmaster. Freeman admitted during his deposition that his belief that the Sewanee Postmaster

position would have given him an opportunity to advance was speculation. Furthermore, as

explained above, Layne’s testimony does not evidence that Freeman’s own prospects for

advancement were hindered in any non-trivial way. Again, it was Freeman’s burden to compare the

two positions and offer objective indications of the superiority of one over the other. Kocsis, 97 F.3d

at 887. He did not do so.

3. Freeman Has Not Shown a Non-Trivial Impact on his Career

In sum, Freeman has provided some evidence that a Postmaster is generally considered a

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prestigious position in the Postal Service, and that the Sewanee Postmaster position is a desirable

one. What he has not done is come forward with evidence of objective indicia which would show:

(a) that the Sewanee Postmaster position was more prestigious than his own position; or (b) that the

experience of being a Sewanee Postmaster would significantly enhance his career opportunities more

than his current position. Accordingly, Freeman has not made his prima facie case of discrimination.

III.

For the foregoing reasons, we AFFIRM summary judgment in favor of the Postal Service.

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CLAY, Circuit Judge, dissenting. Plaintiff has carried his burden on summary judgment

of presenting evidence that he suffered an actionable adverse employment action. Contrary to what

the majority opinion avers, a company’s refusal to hire a current employee into a posted, open

position, for which the company is actively evaluating candidates, raises the necessary inference of

discrimination to satisfy the prima facie case. The Postal Service’s refusal to hire Plaintiff

constitutes the adverse employment action in the instant case. In the alternative, even under the

majority’s formulation of the rule, I would find that Plaintiff has carried his burden on summary

judgment because he has presented objective evidence from which a rational trier of fact could

conclude that a Postmaster position in a small office is objectively more prestigious than a supervisor

position in a larger office. 1. Plaintiff Has Raised the Necessary Inference of

Discrimination

The majority avers that Plaintiff has failed to show that he can meet the second prong, the

“adverse employment action” requirement, of the four-factor prima facie test, as this Circuit requires

under the McDonnell Douglas burden-shifting evidentiary approach. The majority reaches its

conclusion because it views this case as a failure to transfer case, in light of Plaintiff’s current

employment with the Postal Service. In failure to transfer cases, this Court has held that the

employer “action” – either effecting an involuntary transfer or denying a request to transfer – must

somehow result in a materially adverse effect on the plaintiff’s employment. This case is not,

however, a failure to transfer case. Rather, the Postal Service was actively seeking candidates for

the position of Sewanee, Tennessee postmaster. Plaintiff underwent a formal application and

evaluation process, and instead of hiring Plaintiff, the Postal Service hired a much younger, female

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applicant with much less experience than Plaintiff. The adverse employment action is therefore the

refusal to hire, and the majority’s attempt to hold Plaintiff to a higher evidentiary threshold ignores

Supreme Court direction that the prima facie test is meant as a flexible standard comprised only of

those elements which, absent explanation, raises an inference of discrimination. Moreover, the

majority’s approach belies Supreme Court pronouncements on failures to transfer and what

constitutes a “materially adverse” action under Title VII.

a. The Prima Facie Test Is a Flexible Standard

The McDonnell Douglas Court was faced with an employer who refused to rehire a layed-off

machinist who had engaged in civil rights protests against the employer. See McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973). The Court held that to survive summary judgment, a plaintiff

had to present a prima facie case of discrimination. Id. at 802. The Court set fourth a four-factor

test for the prima facie case:

The complainant in a Title VII trial must carry the initial burden under the statute of
establishing a prima facie case of racial discrimination. This may be done by showing

(i) that he belongs to a racial minority;
(ii) that he applied and was qualified for a job for which the employer was
seeking applicants;
(iii) that, despite his qualifications, he was rejected; and
(iv) that, after his rejection, the position remained open and the employer
continued to seek applicants from persons of complainant’s qualifications.

Id. (formatting added).

The Supreme Court further explained that the elements necessary for the prima facie case

are not inflexible, as “[the] facts necessarily will vary in Title VII cases, and the specification above

of the prima facie proof required . . . is not necessarily applicable in every respect in differing factual

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situations.” Id. at 802 n.13. The Supreme Court has since repeated that “[t]he prima facie case

method established in McDonnell Douglas was ‘never intended to be rigid, mechanized, or

ritualistic. Rather it is merely a sensible, orderly way to evaluate the evidence in light of common

experience as it bears on the critical question of discrimination.’” U.S. Postal Service Bd. of

Governors v. Aikens, 460 U.S. 711, 715 (1983) (quoting Furnco Constr. Corp. v. Waters, 438 U.S.

567, 577 (1978)). Moreover, the Supreme Court has emphasized that the presentation of a prima

facie case is not meant to be “onerous,” Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253

(1981), and is generally satisfied upon a showing of “actions taken by the employer from which one

can infer, if such actions remain unexplained, that it is more likely than not that such actions were

based on a discriminatory criterion illegal under the Act,” Furnco, 438 U.S. at 576 (internal

quotations omitted); see also Daniels v. Bd. of Educ., 805 F.2d 203, 207 (6th Cir. 1986).

“Thus, ‘the central inquiry in evaluating whether the plaintiff has met his initial burden is whether

the circumstantial evidence presented is sufficient to create an inference [of discrimination].’” Shah

v. Gen. Elec. Co., 816 F.2d 264, 268 (6th Cir. 1987) (quoting B. Schlei and P. Grossman,

Employment Discrimination Law 247 (Supp. 1983-84)).

b. Supreme Court Direction on “Materially Adverse” Employment Actions

In addition to the Supreme Court’s direction that the prima facie test is meant as a flexible

standard, the Supreme Court has issued other directives relevant to Title VII and discrimination law

that counsel against adopting the majority’s approach. First, the Supreme Court has continued to

treat failure to promote claims with the McDonnell Douglas formulation of the prima facie case,

requiring only that a plaintiff show that she was qualified for an available position, applied for the

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position, did not get the position, and that the position remained open or was filled by someone

outside the plaintiff’s protected class. See Patterson v. McLean Credit Union, 491 U.S. 164, 186-87

(1989). Were the Supreme Court inclined to agree with the majority’s approach, the Court would

most likely inquire into whether the disputed position was somehow a better position than the

plaintiff’s extant job, rather than merely asking whether the plaintiff applied for a job for which he

or she was qualified.

Second, the Supreme Court has held that “Title VII is not limited to ‘economic’ or ‘tangible’

discrimination. The phrase ‘terms, conditions, or privileges of employment’ evinces a congressional

intent to ‘strike at the entire spectrum of disparate treatment . . . ’ in employment.” Meritor Sav.

Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986) (quoting Los Angeles Dep’t of Water & Power v.

Manhart, 435 U.S. 702, 707 n.13 (1978)). The majority’s conclusion that an employer’s failure to

hire an internal candidate is not “materially adverse” to the employee seems to contradict this

expansive interpretation of Title VII, an interpretation recently reaffirmed in Burlington N. & Santa

Fe Ry. Co. v. White, – U.S. – , 126 S. Ct. 2405 (2006).

The White Court was asked to decide what types of employer actions were prohibited under

Title VII’s anti-retaliation provision. In reaching its decision, the Supreme Court reasoned that,

unlike the substantive discrimination provision, the anti-retaliation provision of Title VII reached

“beyond workplace-related or employment-related retaliatory acts and harms.” Id. at 2414. The

Supreme Court maintained, however, that whatever the challenged action might be, it must still be

“materially adverse” to the plaintiff. Id. at 2415. This is the same “material adversity” that is

required to trigger Title VII protections under the civil rights act’s substantive discrimination

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provision, the provision at issue in the instant case.3 Moreover, in discussing material adversity in

White, the Supreme Court looked to examples which were “employment related.” The discussion

and application of the “materially adverse” test in White, therefore, is instructive for the case at bar.

In defining “materially adverse” in the retaliation context, the Supreme Court noted that

things like “petty slights,” “snubbing” and “general antipathy” could not be construed as materially

adverse. Id. The Court noted, however, that under the right circumstances, even a scheduling

change or the denial of “flex time” could be a “materially adverse” action – for example, when done

with respect to a worker with school-age children. The Court therefore recognized that although

a judgment of whether an action is materially adverse must be made from an objective standpoint,

such a judgment must be made from the perspective of a reasonable person in the plaintiff’s position.

See id. In addition, the Court reemphasized the need for standards suited to the varying

circumstances inherently implicated in Title VII cases: “We phrase the standard in general terms

because the significance of any give act of retaliation will often depend upon the particular

circumstances. Context matters.” Id. This direction from the Supreme Court appears to strongly

counsel against a mechanistic and wholesale application of the constituent elements of an “adverse

employment action” from one case to the next. Rather, the Court has instructed us that “context

matters,” and we should instead look to the situation before the Court, asking only what

circumstances give rise to an inference of discrimination.

3
In substantive discrimination cases, such as the case at bar, the materially adverse action
must relate to the “compensation, terms, conditions, or privileges of employment.” White, 126 S.
Ct. at 2414; 42 U.S.C. § 2000e-2.

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The Supreme Court’s examples of what could constitute a materially adverse employment

action in White are consistent with the Court’s past treatment of failures to transfer as discrete

employment actions implicating Title VII concerns. In Clark County Sch. Dist. v. Breeden, 532 U.S.

268, 273 (2001), the Supreme Court addressed a plaintiff’s allegations of retaliation, in part, through

a unilateral transfer. The Supreme Court focused on whether the alleged transfer was causally linked

to the plaintiff’s protected Title VII activity, and not whether the new position was somehow “better”

or “worse” than the employee’s old position. Id. In the very next term, in National Railroad

Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002), a hostile environment case, the Supreme

Court again indicated that a transfer is akin to a failure to hire or promote: “Discrete acts such as

termination, failure to promote, denial of transfer, or refusal to hire are easy to identify. Each

incident of discrimination and each retaliatory adverse employment decision constitutes a separate

actionable ‘unlawful employment practice.’” Id.4 These cases indicate that the Supreme Court

would view a company’s failure to hire an internal candidate into an open and advertised position

as a “materially adverse” employment action under Title VII, an action which, if left unexplained,

could be construed as an act of prohibited discrimination affecting the “terms, conditions, or

privileges of employment.” 42 U.S.C. § 2000e-2; White, 126 S. Ct. at 2410 (defining “discriminate

4
Although these decisions predate White, the White decision does not call into question their
continuing applicability to cases dealing with employment-related actions, insofar as White merely
expanded the scope of redressable behavior beyond these employment-related actions under the Title
VII retaliation provision. To the extent that these cases address materially adverse employment
actions, they remain good law as applied to Title VII substantive discrimination cases.

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against” in § 2000e-2 as “distinctions or differences in treatment that injure protected individuals”).5

c. The “Materially Adverse” Action in the Case at Bar is the Failure to Hire

As the Supreme Court has made clear, the sin qua non of the prima facie case is evidence

that, absent explanation, raises an inference of discrimination. An employer’s failure to hire an

internal candidate into a posted position, which the employer advertised as open and ready to be

filled, is analogous to an employer’s failure to hire an external candidate as treated by the Supreme

Court in McDonnell Douglas. The failure to hire is the “adverse employment action” in the

plaintiff’s prima facie case. When an employer fails to hire an external candidate who is otherwise

qualified for the position, and the position is either left open or is filled by a candidate outside of the

protected class, then the initial showing of discrimination is made, and the prima facie case is

completed. McDonnell Douglas, 411 U.S. at 802 n.13. This same inference of discrimination arises

when an employer rejects an otherwise qualified internal candidate for an open, posted position and

instead hires someone outside of the plaintiff’s protected class.

It is incongruous to argue, as the majority does, that the Postal Service’s refusal to hire

Plaintiff for the postmaster position cannot be the adverse employment action in the instant case.

The majority reaches this conclusion because it reasons, incorrectly, that the refusal to hire cannot

be materially adverse because the Postal Service was not refusing Plaintiff an objectively “better”

5
This reading of Clark County and National Railroad is buttressed by the Supreme Court’s
treatment of hiring, promotion, transfer, and recall decisions as equivalent employment actions in
the First Amendment context. See Rutan v. Republican Party, 497 U.S. 62, 79 (1990) (holding
unconstitutional a state law which imposed party affiliation requirements on lower level state
employees).

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position. The Postal Service advertised the position as open to applications by all qualified

personnel. Ostensibly, only internal personnel could be considered for the job, inasmuch as the

postal service is a unique operation with a partial monopoly over the mails, authorized by the federal

government. The parties agree that job opportunities within the Postal Service are available on a

merit basis, thereby constituting a “privilege” of employment. When Plaintiff was denied the

postmaster position, he was being denied a “privilege” of his employment, i.e., access to job

opportunities on the basis of merit. Moreover, because the postmaster position is objectively distinct

from Plaintiff’s current supervisor position, there is no doubt that the Postal Service’s refusal to hire

Plaintiff into the position affected his “conditions” of employment. These effects are “materially

adverse” to Plaintiff’s interests to the same extent had the Postal Service refused to hire Plaintiff in

the first instance as an entry-level mail carrier.

In the instant case, Plaintiff has shown: 1) that he belongs to a protected class under Title VII

and the ADEA; 2) that Plaintiff was qualified for the postmaster position; 3) that Plaintiff applied

for and did not receive the position; and 4) that a much younger, female applicant (with much less

experience) was hired instead. Absent some rational explanation by the Postal Service, these facts

raise the inference that the successful applicant received the job because of either her gender or her

age. These facts therefore produce the same inference of discrimination that the Supreme Court held

was sufficient to satisfy the prima facie case in McDonnell Douglas.

d. Practical Deficiencies in the Majority’s Approach

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This Circuit has come to use the “adverse employment action” phrase as a placeholder for

the employer action which, when taken in context, gives rise to an inference of discrimination. It

is important, however, when this Court uses the adverse employment action language, that we

remain cognizant of the various situation in which we have chosen to apply the term. The definition

and components of an adverse employment action from one set of circumstances – for example, an

involuntary transfer – will not necessarily serve to describe a suspicious employer action in a

different factual context. Rather, we need to remember the Supreme Court’s admonition that the

prima facie case will vary according to the facts before the Court, McDonnell Douglas,411 U.S. at

802, and that “an act that would be immaterial in some situations is material in others.” White, 126

S. Ct. at 2416 (internal quotation and citation omitted). Instead of following the Supreme Court’s

direction to fashion and apply a flexible prima facie test, the majority has mechanistically relied on

a formulation of adverse employment action which has developed over time in circumstances highly

dissimilar to the case at bar. Indeed, the development of the “adverse employment action”

requirement in our Circuit demonstrates this Court’s overreliance on language and test formulations

articulated in prior cases without inquiring into whether such wholesale application serves the

purpose the prima facie test is meant to serve for the case at hand: facts and evidence which suggest

discrimination – no more, and no less.6

6
The “adverse employment action” was first articulated by this Court as variation of the “did
not get hired” prong of the McDonnell Douglas prima facie test to serve the Court’s evaluation of
a plaintiff’s evidence in Title VII retaliation cases. See Brown v. Marks, No. 81-3477, 1983 U.S.
App. LEXIS 13349 (6th Cir. Mar. 3, 1983) (unpublished opinion). This variation made sense, as the
adverse employer action is the sin qua non in the retaliation context, just as the failure to get the job
is the sine qua non in the hiring context. As case law developed, however, this Court has come to

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The majority’s version of the “adverse employment action” largely relies on a supporting

definition for the phrase developed in response to involuntary transfer scenarios.7 This Court then

expanded the use of the “adverse employment action” as defined in involuntary transfers to situations

involving denials of ad-hoc, voluntary transfer requests. See, e.g., Kocsis v. Multi-Care Mgt., Inc.,

97 F.3d 876, 885 (6th Cir. 1996) (involuntary lateral transfer) (requiring involuntary transfer to be

“materially adverse” to plaintiff in order to constitute an adverse employment actins); Strouss v.

Mich. Dep’t of Corrs., 250 F.3d 336, 343 (6th Cir. 2001) (involuntary lateral transfer) (“[P]urely

personal reasons for turning down a transfer are not sufficient to render a transfer an adverse

employment action.”); Reese v. State of Mich. Family Indep. Agency, 31 Fed. App’x 172, 174 (6th

Cir. 2002) (unpublished opinion) (holding that the employer’s rejection of ad hoc transfer request

could not amount to an adverse employment action). Today, the majority imports wholesale the

elements of the adverse employment action in these involuntary and ad-hoc transfer circumstances

into a failure to hire situation.

The definitional components of the adverse employment action in the above types of transfer

contexts, however, do not necessarily translate to the case at bar. With an involuntary transfer,

use “adverse employment action” as a placeholder phrase for an employment action which, when
taken in context, gives rise to an inference of discrimination. See Simpson v. Midland-Ross Corp.,
823 F.2d 937, 940 (6th Cir. 1987) (using the “adverse employment action” language for the first time
in the articulation of the prima facie case requirements outside of the retaliation context).
7
The Court first applied the adverse employment action requirement to an involuntary transfer
case in Yates v. Avco Corp., 819 F.2d 630, 638 (6th Cir. 1987) (reasoning that the plaintiff’s
involuntary transfer could not be an adverse employment action because she “continued to receive
the same salary and benefits” as she had prior to the transfer).

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whether the transfer is to a job which is somehow worse than the employee’s current position

certainly seems to serve the Supreme Court’s direction that the prima facie case requires a showing

of “actions taken by the employer from which one can infer, if such actions remain unexplained, that

it is more likely than not that such actions were based on a discriminatory criterion illegal under the

Act.” Furnco, 438 at 576 (internal quotations omitted); see also Daniels, 805 F.2d at 207. In

contrast, when an employer advertises an open position, whether that position is somehow a“better”

job than an employee’s current position, does not inform the inquiry of whether the employer’s

actions were based on discriminatory intent. Instead, those circumstances which raise the inference

of discrimination are precisely those circumstances from which a factfinder could legitimately infer

discriminatory intent in a failure to hire case: 1) a plaintiff in a protected class; 2) a posted, open

position for which the plaintiff is qualified; 3) a rejection by the employer; and 4) the position either

remaining open or going to someone outside the protected class.

The majority’s standard presents unacceptable implications. Under the majority’s

formulation, an internal candidate for a posted, advertised position has a higher evidentiary threshold

under Title VII and ADEA than an external candidate for the same position. An external candidate

for an advertised position can make a prima facie case of discrimination merely by showing that the

employer failed to hire the candidate. This is a direct application the McDonnell Douglas case. The

failure to hire is the “adverse employment action” in the language of this Circuit. The internal

candidate, however, must show that the position was somehow objectively better (more money,

better benefits, more prestige, etc.) than the position which the internal candidate already filled. The

external candidate has no such additional requirement. One might ask why an employer’s failure

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to hire an external candidate constitutes the “adverse employment action” for that candidate, but the

same failure to hire does not constitute the “adverse employment action” for the internal candidate.

The courts do not ask whether the external candidate would be leaving a position which is just as

objectively “good” as the position being sought. The internal candidate should be treated the same.

Finally, the majority’s decision aligns this Court with only one other circuit court of appeals.

Four other Circuits have addressed the question of whether an employer’s failure to hire an internal

candidate can constitute an adverse employment action absent some additional showing. The First,

Ninth, and Tenth Circuits have indicated that an employer’s failure to transfer an employee into a

open, posted position, for which the employee applied, constitutes an “adverse employment action”

on the same basis as a failure to hire an external candidate. See Amro v. The Boeing Co., 232 F.3d

790, 797-98 (10th Cir. 2000) (treating a failure to transfer claim as a failure to hire claim); Randlett

v. Shalala, 118 F.3d 857, 862 (1st Cir. 1997) (finding a refusal to transfer an actionable Title VII

action when such transfers were common enough to support a finding that they were “privileges” of

employment); Bouman v. Block, 940 F.2d 1211, 1229 (9th Cir. 1991) (“The fact that the position was

not made available to [plaintiff] . . . is sufficient [to establish an adverse employment action].”) In

contrast, only one other circuit has applied the majority’s standard to an employer’s denial of a

plaintiff’s request to transfer/be hired into a open, posted position. Brown v. Brody, 199 F.3d 446,

455-56 (D.C. Cir. 1999). Today’s decision aligns the Sixth Circuit with the D.C. Circuit and not the

majority of our sister circuit courts of appeals.

I would therefore treat this case as a failure to hire case and find that Plaintiff has shown that

he has suffered an adverse employment action.

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II. As a Failure to Transfer Claim, Plaintiff Has Carried His Prima Facie Burden

Under the majority’s formulation of the prima facie case, Defendant’s denial of Plaintiff’s

application for the postmaster position must amount to a failure to promote Plaintiff – i.e., a denial

of increased pay, benefits, prestige, or opportunity for advancement. See Mitchell v. Vanderbilt

Univ., 389 F.3d 177, 183 (6th Cir. 1994). Therefore, the denial of a transfer is an adverse

employment action if the transfer would have resulted in “an increased salary, significantly changed

responsibilities, a more distinguished title, or a gain in benefits.” Id. However, again under the

majority’s formulation, “a plaintiff’s subjective impression concerning the desirability of one

position over another generally does not control with respect to the existence of an adverse

employment action.” Id.

In the instant case, Plaintiff presents more than his subjective impression that the postmaster

position was more prestigious than his current supervisor position.8 Plaintiff presents testimony from

8
The majority opinion relies on Mitchell v. Vanderbilt Univ., 389 F.3d 177 (6th Cir. 2004),
for the proposition that there was no adverse employment action against Plaintiff. This reliance is
misplaced. In Mitchell, this Court found that a plaintiff alleging age discrimination did not
experience an adverse employment action where the defendant articulated a legitimate and
nondiscriminatory reason for not hiring the plaintiff for the position he sought. 389 F.3d at 181-82.
The Court found “nothing to indicate that the appointment would have provided an increased salary,
significantly changed responsibilities, a more distinguished title, or a gain in benefits.” Id. at 183.
“Mitchell was not the best qualified applicant for the position because of his dislike of administrative
duties, his apparent disinterest in clinical work, and his tendency to arrive late to meetings.” Id. at
184. The instant case is distinguishable from Mitchell because Plaintiff has presented sufficient
evidence from which a rational trier of fact could conclude that the Postmaster position which he
sought – and qualified for – is objectively more prestigious than a supervisor position. The
precedential import of Mitchell is also undermined by the fact that the case was decided prior to
Burlington Northern and Santa Fe Ry. Co. v. White, – U.S. – , 126 S. Ct. 2405 (2006). Moreover,
the majority’s reliance on Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 761 (1998), is also
inapposite because Ellerth is a sexual harassment hostile work environment case and is, therefore,

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third parties that a postmaster position is generally more sought after than a supervisor position

because of its unique attributes. A postmaster is in charge of his office. This is an objective

distinction from a supervisory position in a larger office, in which authority is exercised only over

one aspect of operations. Even were the total number of employees supervised by a postmaster the

same or fewer than the number supervised by a supervisor in a larger office, the postmaster position

may still be sufficiently unique inasmuch as the postmaster is the final authority on site, which is a

significant distinguishing factor from merely being a supervisor in a larger office.

Defendant’s counterarguments as to level of pay and number of supervised staff do not cancel

out Plaintiff’s evidence of enhanced prestige. Pay and number of employees supervised are not

dispositive with respect to the level of prestige a position holds. Although these factors may be

typically indicative of higher-level positions, they are not the only factors determining a position’s

prestige. Common experience teaches us that independence is a highly desirable employment

condition. The objective desirability of being in charge of an entire post office is a sufficient

distinguishing factor for a postmaster to make the position more prestigious than the supervisor

position already held by Plaintiff. Plaintiff has presented sufficient evidence such that a reasonable

jury could infer that Plaintiff has suffered an adverse employment action under the majority’s

formulation of the test.

Therefore, even under the majority’s formulation of the adverse employment action test to

be applied in the instant case, I would find that Plaintiff has carried his burden on summary

distinguishable from the instant case.

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judgment.

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