United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 3, 2002 Decided October 18, 2002
No. 01-5080
Samuel E. Forkkio,
Appellant
v.
Donald E. Powell,
in his capacity as Chairman,
Federal Deposit Insurance Corporation,
and
Federal Deposit Insurance Corporation,
Appellees
Appeal from the United States District Court
for the District of Columbia
(98cv00609)
Janet A. Vecchia argued the cause and filed the briefs for
appellant.
J. Scott Watson, Counsel, Federal Deposit Insurance Cor-
poration, argued the cause for appellees. Colleen J. Boles,
Senior Counsel, and Jaclyn C. Taner, Counsel, Federal De-
posit Insurance Corporation, were on the brief. Ann S.
DuRoss, Assistant General Counsel, and Kathryn R. Nor-
cross, Counsel, Federal Deposit Insurance Corporation, en-
tered appearances.
Before: Ginsburg, Chief Judge; Sentelle and Randolph,
Circuit Judges.
Opinion for the Court filed by Circuit Judge Randolph.
Randolph, Circuit Judge: This appeal from an order grant-
ing summary judgment in favor of the defendant calls upon us
once again to determine whether the plaintiff, who alleged
employment discrimination and retaliation, suffered from an
adverse personnel action. See Brown v. Brody, 199 F.3d 446,
452 (D.C. Cir. 1999).
Samuel E. Forkkio began working for the Federal Deposit
Insurance Corporation (FDIC) in 1989 in its Division of
Finance. He started as a unit chief at a pay grade of 14. In
August 1993, he received a temporary promotion, authorized
under 5 C.F.R. s 335.102(f), to the position of Chief, Account-
ing and Tax Policy Section, a Grade 15 position. His tempo-
rary promotion, originally set to expire on August 7, 1994,
was extended until March 30, 1996, and then until January 4,
1997. At the time, the Finance Division was organized into
units grouped under sections in separate branches. Branch
heads reported to the Director of the Division.
Forkkio's responsibilities as section chief were to review
and issue accounting and tax policies for the FDIC and to
perform various administrative functions, including supervis-
ing the section's staff, filling out staff evaluations, and manag-
ing the section's workload. According to 1995 evaluations of
his performance, he did excellent work, receiving 1's and 2's
on a 5-point scale in all skill categories. In June 1996, the
Division of Finance reorganized. Numerous FDIC employ-
ees had staffed the Resolution Trust Corporation upon its
creation in 1989, see 12 U.S.C. s 1441a(b)(8)(A), (B); when
the agency was dissolved in 1995, see id. s 1441a(m)(1), (3),
some of the employees returned to the FDIC. The reorgani-
zation added a layer of executives between the branch heads
and the Director, reducing the number of those directly
reporting to the Director. Various sections and units were
renamed or shifted to different areas.
Just before the reorganization, approximately seven section
chiefs, of whom Forkkio was the only African American, held
temporary Grade 15 positions. In the reorganization, Fork-
kio's section was eliminated because its workload had de-
clined. His section was added to another section within the
Division, and its employees were reorganized into a "unit"
within the other section. Forkkio thereby lost his temporary
section chief position. Meanwhile, all of the sections super-
vised by white section chiefs on temporary Grade 15 pro-
motions continued to exist. Forkkio was the only temporary
section chief in the Division who lost his position.
Forkkio's working conditions remained the same in several
important respects. His salary was not reduced; in fact, it
increased in August 1996, after the reorganization. There is
no allegation that his benefits were reduced. He retained his
temporary pay grade of 15, which was not set to expire until
January 4, 1997. His responsibilities in his new position were
substantially the same as before the reorganization. In fact,
his work in the accounting and tax policy area increased. He
was given additional functions related to tax operations. He
continued to supervise members of his former staff, and
additional staff were assigned to him.
There were some changes in his situation. One unit chief
whom he had formerly supervised was transferred to another
section. The section chief he now reported to was a former
colleague, and an African American. He no longer attended
weekly Finance Division management meetings or received e-
mails, memoranda, or other communications sent to manage-
ment officials about Division business. In contrast, all of the
other temporary section chiefs continued to attend the weekly
management meetings and to receive all communications
regarding Division management.
Forkkio filed a complaint of discrimination with the Equal
Employment Opportunity Commission (EEOC) in August
1996. In October and November 1996, Division management
officials competitively posted all the permanent section chief
positions. Forkkio was qualified and applied for several of
them, but was not interviewed for any. All the other tempo-
rary grade 15 section chiefs received promotions to perma-
nent grade 15 positions.
Later, Finance Division officials decided to reinstate the
Accounting and Tax Policy Section. The FDIC posted the
section chief position as a temporary Grade 15 position on
December 20, 1996. It was the only section chief position in
the Division posted as a temporary position. Forkkio did not
apply.
On January 4, 1997, when Forkkio's temporary Grade 15
promotion expired, he reverted to a permanent Grade 14
position. As part of the reversion, he received the title of
Senior Accountant, a staff position below unit chief. Despite
the changes in his grade and title, Forkkio's pay was not
reduced. When he reverted to Grade 14 his pay increased.
He also continued to perform the same work.
On February 11, 1997, the FDIC reposted the position of
Chief, Accounting and Tax Policy Section, as a permanent
Grade 15 position. Pending the selection of a permanent
section chief, Forkkio was asked and agreed to serve as
acting section chief. He applied for the permanent position
and was promoted to it on April 13, 1997.
As acting and then permanent section chief, Forkkio began
reporting to Russell Cherry, an FDIC manager. Forkkio
found several of Cherry's actions in 1996 and 1997 offensive.
Before becoming Forkkio's supervisor, Cherry discussed the
functions of Forkkio's section with a member of Forkkio's
staff instead of with him. After becoming Forkkio's supervi-
sor, Cherry sent Forkkio a memorandum congratulating him
on his promotion and e-mails requesting updates on various
projects, which Forkkio perceived as criticism. Cherry also
made personnel decisions about Forkkio's staff without con-
sulting him (e.g., transferring members of Forkkio's section to
other work groups, posting a vacancy for a job opening in his
section, and re-interviewing candidates Forkkio had already
interviewed). Based on these incidents, Forkkio filed three
more complaints with the EEOC, in May, July, and October
1997.
Forkkio claims the FDIC discriminated against him in
violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.
ss 2000e et seq., when it deprived him of his section chief
position during the reorganization. He also claims, based on
the expiration of his temporary promotion, the assignment of
Cherry as his supervisor, and Cherry's supposedly offensive
actions, that the FDIC and Cherry unlawfully retaliated
against him for his August 1996 complaint to the EEOC. In
a careful opinion, Judge Huvelle held that Forkkio had not
established a prima facie case of either discrimination or
retaliation and granted summary judgment for the FDIC.
Forkkio v. Tanoue, 131 F. Supp. 2d 36, 37 (D.D.C. 2001).
In the district court's view, Forkkio had established neither
an adverse employment action nor an inference of discrimina-
tion. 131 F. Supp. 2d at 44. Title VII of the Civil Rights Act
of 1964 makes it unlawful for an employer "to discriminate
against any individual with respect to his compensation,
terms, conditions, or privileges of employment," 42 U.S.C.
s 2000e-2(a)(1), or "to limit, segregate, or classify his employ-
ees ... in any way which would deprive or tend to deprive
any individual of employment opportunities or otherwise ad-
versely affect his status as an employee," 42 U.S.C. s 2000e-
2(a)(2), based on a protected characteristic. To state a prima
facie case of disparate treatment discrimination under these
provisions, the plaintiff must establish that (1) he is a member
of a protected class, (2) he suffered an adverse employment
action, and (3) the unfavorable action gives rise to an infer-
ence of discrimination (that is, an inference that his employer
took the action because of his membership in the protected
class). Brown v. Brody, 199 F.3d 446, 452 (D.C. Cir. 1999).
Actions short of an outright firing can be adverse within
the meaning of Title VII, but not all lesser actions by
employers count. As we wrote in Brown, 199 F.3d at 457,
"[m]ere idiosyncracies of personal preference are not suffi-
cient to state an injury."1 See Williams v. Bristol-Myers
Squibb Co., 85 F.3d 270, 274 (7th Cir. 1996). Purely subjec-
tive injuries, such as dissatisfaction with a reassignment, see
Brown, 199 F.3d at 457, or public humiliation or loss of
reputation, see Stewart v. Evans, 275 F.3d 1126, 1136 (D.C.
Cir. 2002), are not adverse actions. Therefore Forkkio could
not establish an adverse action on the basis that the reassign-
ment deprived him of prestige.
In contrast with purely subjective harms, "reassignment
with significantly different responsibilities, or ... a signifi-
cant change in benefits" generally indicates an adverse action.
Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998).
Relying on these two factors, we announced in Brown: an
employee suffers an adverse employment action if he experi-
ences materially adverse consequences affecting the terms,
conditions, or privileges of employment or future employment
opportunities such that a reasonable trier of fact could find
objectively tangible harm. Brown, 199 F.3d at 457.
As we have mentioned, the reorganization did not affect
Forkkio's pay or benefits. He suffered no loss of pay after
his June 1996 change from section chief to unit chief; his pay
increased shortly after the reorganization. He did not allege
that his benefits changed. He retained his temporary Grade
15 promotion. Forkkio's claim of an adverse employment
action must therefore rest on a significant change in his job
responsibilities. See, e.g., Freedman v. MCI Telecomm.
Corp., 255 F.3d 840, 848 (D.C. Cir. 2001). As the district
court recognized, 131 F. Supp. 2d at 39, Forkkio's substantive
responsibilities were not reduced: he was given additional
functions to perform; he continued to supervise his former
staff members; and he was given additional staff. That
he no longer attended management meetings or received
__________
1 Stewart v. Ashcroft, 211 F. Supp. 2d 166 (D.D.C. 2002), quoted
this passage, but added "[sic]" after "idiosyncracies." Id. at 175.
This seems to assume that the word must be spelled "idiosyncrasy,"
but "idiosyncracy" is also an accepted spelling. Webster's Third
New International Dictionary 1123 (1986).
management-related e-mails and other communications dur-
ing the several months before his reappointment as section
chief appears to us, as it did to the district court, 131 F. Supp.
2d at 40, not sufficiently significant to amount to "materially
adverse consequences." Brown, 199 F.3d at 457. Forkkio's
former position as a section chief was temporary. Nothing in
his Statement of Genuine Issues and Material Facts in Dis-
pute indicates that while holding that position, he played any
substantial role in managing the Division of Finance above
and beyond his activities in supervising the people in his
section, an aspect of his employment that did not change upon
reorganization.
Forkkio also argues that the change in his position reduced
his ability to complete his job satisfactorily because he lost a
unit chief and because his new supervisor lacked expertise in
his area. No such claim was included in his statement of
genuine issues and the district court, after reviewing the
record, concluded that "[t]here is simply no evidence that
after the reorganization plaintiff was somehow hampered in
his ability to do his job." 131 F. Supp. 2d at 41.
We therefore agree with Judge Huvelle that Forkkio
"failed to provide any evidence, beyond his conclusory asser-
tions of loss of prestige, of any adverse consequence to his
position or future career, especially in light of his promotion
to a permanent grade 15 section chief position less than one
year later." Id. at 41-42.
Forkkio's remaining claim is one of retaliation under anoth-
er provision of Title VII, which makes it unlawful for an
employer "to discriminate against any of his employees ...
because he has opposed any practice made an unlawful em-
ployment practice by this subchapter, or because he has made
a charge ... under this subchapter." 42 U.S.C. s 2000e-3(a).
To state a prima facie case of retaliation under this provision,
the plaintiff must establish that (1) he engaged in a statutori-
ly protected activity, (2) the employer took an adverse per-
sonnel action, and (3) a causal connection existed between the
two. Brown, 199 F.3d at 452. Forkkio's filing of complaints
with the EEOC was protected activity, but again he has not
shown an adverse action. He claims that several incidents
were retaliatory adverse actions: (1) his January 1997 rever-
sion from Grade 15 to a Grade 14 Senior Accountant position,
(2) the placement of Cherry as Forkkio's supervisor, and (3)
Cherry's alleged undermining of Forkkio's authority in 1996
and 1997.
None of these rises to the level of an adverse action. The
January 1997 reversion resulted from the automatic expira-
tion of a temporary promotion. It did not cause a reduction
in Forkkio's pay, benefits, job responsibilities, or any other
substantial change in working conditions that might support
finding an adverse action under Brown. Cherry's supervision
of Forkkio may have caused him subjective injury, but it did
not objectively harm his working conditions or future employ-
ment prospects.
Summary judgment is proper "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).
Because Forkkio failed to establish an adverse action on
either his discrimination claim or his retaliation claim, the
order granting summary judgment is affirmed.
So ordered.