Currier, Kenneth v. Pstmstr Gen

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 5, 2002 Decided October 4, 2002

No. 01-5248

Kenneth Currier,
Appellant

v.

Postmaster General,
Appellee

Appeal from the United States District Court
for the District of Columbia
(98cv03037)

Joel P. Bennett argued the cause and filed the briefs for
appellant.

Marina Utgoff Braswell, Assistant U.S. Attorney, argued
the cause for appellee. With her on the brief were Roscoe C.
Howard, Jr., U.S. Attorney, and R. Craig Lawrence, Assis-
tant U.S. Attorney.

 Before: Ginsburg, Chief Judge; Sentelle and Randolph,
Circuit Judges.

Opinion for the Court filed by Circuit Judge Randolph.

Randolph, Circuit Judge: This is an appeal from the order
of the district court dismissing Kenneth Currier's claim alleg-
ing employment discrimination in violation of Title VII of the
Civil Rights Act of 1964 and the Age Discrimination in
Employment Act. Although the district court framed the
order as if it were granted under Fed. R. Civ. P. 12(b)(6), the
court considered and relied on material outside the amended
complaint. This converted the order into one of summary
judgment under Fed. R. Civ. P. 56, which the Postal Service
had sought in the alternative. "If, on a motion ... to dismiss
for failure of the pleading to state a claim upon which relief
can be granted, matters outside the pleading are presented to
and not excluded by the court, the motion shall be treated as
one for summary judgment and disposed of as provided in
Rule 56...." Fed. R. Civ. P. 12(b).

Plaintiffs in employment discrimination cases, like plaintiffs
in other cases, bear the burden of proof at trial. At the
summary judgment stage, Currier had to show only that
there was a genuine issue of material fact and that the Postal
Service was therefore not entitled to judgment as a matter of
law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
The issue before us deals with Currier's reassignment when
the Postal Service implemented a reduction in force--or
RIF--in 1995, an act of discrimination by his lights. There is
no dispute that Currier retained the same pay and benefits
after the 1995 RIF as he had before it. Even so, he could
make out an actionable injury if there were "materially
adverse consequences affecting the terms, conditions, or privi-
leges" of his employment that a reasonable finder of fact
could conclude caused him "objectively tangible harm."
Brown v. Brody, 199 F.3d 446, 457 (D.C. Cir. 1999). This
calls for a comparative judgment: what was the situation
immediately before the alleged adverse personnel action, and
what was the situation after it? Currier claimed that he was
reassigned to a "materially lower position with materially

lower duties." But by his own admission, the job he held
immediately before the 1995 RIF was a "do nothing posi-
tion."1 After the RIF he became a manager for legislative
support in government relations. He had general budget
duties for an office and supervised up to a dozen workers.
He thus went from a position before the RIF with no duties
to a position after the RIF with some duties. No material
facts were thus in dispute on the determinative issue: as a
matter of law, Currier did not experience any adverse person-
nel action, an essential element of his cause of action.
Brown, 199 F.3d at 455.
Currier would like us to contrast his post-RIF assignment
with a position he held from 1982 until November 1992. But
that is the wrong comparison. The proper inquiry is to
determine how the alleged discriminatory action, which oc-
curred in 1995, affected his employment status in 1995.
Currier's job changed in 1992, but he does not allege the
change resulted from unlawful discrimination. It would be
senseless to say, for instance, that an employee's promotion
from shop clerk to assistant supervisor in the year 2000 was
an adverse employment action because the employee years
ago held the position of supervisor. To state the obvious, the
employee must be worse off after the personnel action than
before it; otherwise, he has suffered no objectively tangible
harm.
Affirmed.

1 The following exchange in Currier's deposition describes his
job before the RIF:

Q So you stayed at Merrifield. What were your duties at
Merrifield?

A None.

Q None?

A [sic] Did you work while you were out there?

A No.

Q What did you do all day?

A Occupied an office.
Currier Dep. at 40 (July 22, 1999).