United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 7, 2007 Decided October 30, 2007
No. 05-5415
HARVEY L. PATTERSON,
APPELLANT
V.
STEPHEN L. JOHNSON, ADMINISTRATOR, UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 02cv02213)
Ellen K. Renaud argued the cause for appellant. With her
on the briefs was Richard L. Swick. David H. Shapiro entered
an appearance.
Oliver W. McDaniel, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Jeffrey A.
Taylor, U.S. Attorney, and R. Craig Lawrence, Assistant U.S.
Attorney. Michael J. Ryan, Assistant U.S. Attorney, entered
an appearance.
Before: RANDOLPH and BROWN, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
2
Opinion for the Court filed by Senior Circuit Judge
WILLIAMS.
WILLIAMS, Senior Circuit Judge: Harvey L. Patterson
claims that his immediate supervisor engaged in unlawful
racial discrimination against him through her various
interventions into Patterson’s management of his division at
the Environmental Protection Agency (“EPA”). He also
claims that his later transfer to another position within the
EPA amounted to unlawful retaliation directed against his
filing and pursuit of a discrimination complaint before the
EPA’s Office of Civil Rights. The district court granted
summary judgment for the defendant. We affirm.
* * *
Beginning in 1998, Patterson, an African-American,
served as Director of the Superfund/RCRA Regional
Procurement Operations Division (“SRRPOD”) and as a
member of the EPA’s Senior Executive Service (“SES”).
SRRPOD is a division of the Office of Acquisition
Management (“OAM”), which itself is within the Office of
Administration and Resources Management (“OARM”).
During the summer of 2000, Judy S. Davis, a Caucasian,
became Patterson’s immediate supervisor upon her promotion
to Acting Director of OAM (a promotion made permanent the
following year). Patterson alleges that trouble between him
and Davis began almost immediately and that their
relationship suffered from serious differences in management
philosophy. The disparate treatment that Patterson alleges
depends entirely on actions by Davis as his superior; those
actions, and more broadly the interaction between him and
Davis, also form the background for the allegedly retaliatory
3
transfer. We address the allegations of disparate treatment
first, then those of retaliation.
Discrimination claims. These need not detain us long.
As a threshold matter, Patterson first contacted an EEO
counselor on February 28, 2002. His claims that are based on
alleged actions taken more than 45 days earlier were not
properly exhausted, see 29 C.F.R. § 1614.105(a)(1); see also
Broderick v. Donaldson, 437 F.3d 1226, 1232 (D.C. Cir.
2006), so summary judgment as to those claims was clearly
correct.
Patterson’s remaining discrimination claims rest on
evidence that Davis: (1) vetoed his hiring of clerical staff on
February 25, 2002, thus usurping what he believed to be his
prerogative (although she reversed that decision two days
later); (2) detailed two employees out of SRRPOD in
February and March 2002; (3) hired an interviewee over his
objection in March 2002, and then immediately detailed that
new employee out of SRRPOD; (4) failed to appoint him as
Acting Director for the day of March 8, 2002; and (5)
intervened in and refused to take disciplinary action regarding
a case of possible theft involving one of Patterson’s
subordinates.
Liability for discrimination under Title VII requires an
adverse employment action, Brown v. Brody, 199 F.3d 446,
452-55 (D.C. Cir. 1999). For the mine run of cases, we’ve
adopted Supreme Court language, formulated in a slightly
different context, and held that such adversity requires “‘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.’” Taylor v. Small, 350 F.3d 1286, 1293
(D.C. Cir. 2003) (quoting Burlington Indus., Inc. v. Ellerth,
524 U.S. 742, 761 (1998)). This formulation doesn’t seem
4
quite apt for a case where the gravamen of the complaint is
interference with the plaintiff’s managerial prerogatives. Cf.
Ohal v. Bd. of Trs. of the Univ. of the Dist. of Columbia, 100
F. App’x 833, 834 (D.C. Cir. 2004) (per curiam) (requiring “a
material reduction of supervisory responsibilities” (emphasis
added)). In such a case, we think the interference could
qualify as an adverse employment action only if it tended to
materially impair the plaintiff’s job performance or prospects
for advancement.
Patterson provides no evidence that Davis’s actions could
have had any such effects. As SRRPOD Director he
supervised approximately 57 employees; how the detail of just
three of those subordinates to other duties might be materially
adverse is not apparent. Indeed, Patterson’s official
evaluations classed his management of SRRPOD as
“outstanding,” the highest of the five possible ratings. Joint
Appendix (“J.A.”) 634.
Likewise, there is no evidence that materially adverse
consequences to Patterson’s employment could have flowed
from Davis’s not designating him as Acting Director of OAM
for a single day, see Taylor v. FDIC, 132 F.3d 753, 764-65
(D.C. Cir. 1997), her veto of clerical staff hiring that she
reversed just two days later, or her decision not to refer a theft
case involving an SRRPOD employee for formal
investigation. Patterson claims that these actions caused him
to feel “undermin[ed],” J.A. 570, 577, but “‘purely subjective
injuries,’ such as . . . loss of reputation, are not adverse
actions.” Holcomb v. Powell, 433 F.3d 889, 902 (D.C. Cir.
2006); see also Forkkio v. Powell, 306 F.3d 1127, 1132 (D.C.
Cir. 2002) (holding that while “supervision” may have caused
an employee “subjective injury,” it did not “objectively harm
his working conditions or future employment prospects”).
5
Retaliatory transfer. This issue requires introduction of a
new dramatis persona, Morris X. Winn, an African-American
who was designated as Assistant Administrator for OARM in
late 2001 and confirmed and appointed to that position in
February 2002. Accession to this post made him the superior
of both Davis and Patterson. Shortly after Winn’s designation
to lead OARM, Patterson arranged a meeting with him and
discussed his difficulties working with Davis and his
willingness to transfer to a comparable position within the
EPA. Later, in December 2001, in one of the time-barred acts
of alleged discrimination, Davis cancelled an approved leave
of Patterson’s so that he could attend a rescheduled OAM
staff meeting. This precipitated another spat between Davis
and Patterson, with Patterson then calling on Winn to
intervene. Shortly thereafter, on January 4, 2002, Patterson
sent Winn a draft EEO complaint in order “to give [Winn] a
sense of some of what I have been dealing with for the last
several years, and why I feel that the cost of repairing the
relationship [with Davis] is far beyond what I’m willing to
pay.” J.A. 645.
At about this time Winn started to consider possible
transfers for Patterson, and in February 2002 offered him a
new position as his own Senior Advisor. Patterson declined
that offer and asked to remain at SRRPOD unless the “other
options” he had discussed with Winn became available. J.A.
644. Patterson recalled that Winn “offered several different
positions” to him in early 2002, but that he declined each offer
because he “did not think [they] were comparable
[positions].” J.A. 147. As part of an agency exercise to shift
SES employees to new positions within EPA, Patterson
provided EPA’s Office of Human Resources and
Organizational Services with a list of five positions to which
he would be willing to transfer. He was told that none of
those positions was available.
6
On June 18, 2002, Patterson contacted Winn to inform
him that “schisms in OAM are deepening and intensifying”
and that absent some intervention “explosions may be close at
hand.” J.A. 659. The next day, Patterson forwarded Winn an
e-mail chain in which Patterson and Davis argued over who
would be named to a temporary detail assignment—a
communication that Winn labeled “More of the same.” J.A.
657. Soon thereafter, Winn proposed to Patterson that he be
transferred to a new position—Associate Director for
Competition and Strategic Planning—that EPA was
establishing within OARM’s Office of Grants and Debarment.
Patterson declined the offer, but Winn decided to transfer
Patterson over his objection. When Winn signed paperwork
creating the new position on July 3, 2002, he listed Patterson
as the employee who would fill the position. Later that
month, Winn formally requested Patterson’s transfer and
made it effective on August 1, 2002. Patterson alleges that
this transfer constituted unlawful retaliation for the filing and
pursuit of his EEO complaint. See 42 U.S.C. § 2000e-3(a).
We assume in Patterson’s favor that the evidence made
out a prima facie case of retaliation. Thus we assume that the
temporal proximity of Patterson’s discrimination complaint
and transfer could support a jury’s finding of a causal link, see
Mitchell v. Baldridge, 759 F.2d 80, 86 (D.C. Cir. 1985); Winn
received official notice of Patterson’s formal complaint the
day before he formally created the new position for Patterson,
though he had long been aware of Patterson’s discrimination
complaint against Davis and had long contemplated a change
in Patterson’s position. And we assume that the sharp
reduction in supervisory responsibilities associated with the
transfer—Patterson had 57 subordinates in the old position,
but none in the new (at least at the outset)—could support a
jury’s finding that such a transfer “could well dissuade a
reasonable worker from making or supporting a charge of
discrimination.” Burlington N. & Santa Fe Ry. Co. v. White,
7
126 S. Ct. 2405, 2409 (2006); see also id. at 2415; cf.
Czekalski v. Peters, 475 F.3d 360, 364-65 (D.C. Cir. 2007).
The remaining question is whether, in light of the
justifications offered by the EPA, a reasonable jury could
infer from Patterson’s prima facie case and any other evidence
that the transfer was a response to Patterson’s protected
activity rather than a result of the legitimate, non-
discriminatory reasons proffered by the EPA. See Broderick,
437 F.3d at 1231-32.
The EPA argues that Winn transferred Patterson because
he had requested to be transferred away from a supervisor
with whom his relationship was admittedly beyond repair, and
that the transfer responded to insistent congressional concerns
and furthered a new mobility program aimed at all of the
EPA’s senior executives. Indeed, at their very first meeting,
Patterson had asked Winn to transfer him out of OAM (and
thus away from Davis’s supervision) and into a comparable
position elsewhere in OARM. Weeks after Patterson
informed Winn of his draft EEO complaint, Winn had asked
Patterson to serve as his own Senior Advisor, but Patterson
declined that offer. Moreover, the position to which Winn
ultimately transferred Patterson was important to the EPA.
Members of Congress had long been concerned that EPA
issued too few of its grants on a competitive basis, and at the
time of the transfer they were demanding that EPA establish a
“competition advocate” who would implement grant-making
reforms then undertaken mainly on paper. Winn believed that
Patterson’s experience with procurement contracts made him
uniquely qualified for the task. Finally, Winn also claimed
that Patterson’s transfer request provided him with an
opportunity to further the EPA’s new “SES Mobility
Program,” through which officials expected to transfer at least
one third of senior executives as a means to counteract SES
members’ having become “entrenched” in their particular
8
positions in the EPA. For all of those reasons, Winn believed
that transferring Patterson—even over Patterson’s objection—
was in the best interests of the EPA. See 5 U.S.C. § 3131
(“The Senior Executive Service shall be administered so as
to . . . enable the head of an agency to reassign senior
executives to best accomplish the agency’s mission.”).
To rebut EPA’s justifications, Patterson raises two
arguments. First, Patterson interprets Winn’s expressions of
irritation at the ongoing bickering between him and Davis as
indicating hostility to Patterson’s statutorily protected
complaints of discrimination. Second, he notes his own
deposition testimony recounting that Winn and other EPA
officials “said that no one would be moved involuntarily” and
that “[t]here would be no forced moves.” J.A. 145. We will
assume for the purposes of summary judgment that even a
transfer precipitated by an employee’s own request, but to a
position not of his choosing, breached those assurances.
As to the first, it seems clear that Winn’s problem was not
with discrimination claims but with incessant quarreling. For
months, Patterson had informed Winn of his complaints
against Davis and his desire to transfer out of OAM. Indeed,
Patterson provided Winn with a draft of his EEO complaint
six months before the transfer, and there is no evidence that
Winn objected to Patterson’s filing that complaint. Instead,
Winn merely expressed exasperation with his squabbling
subordinates: on receiving a chain of disputatious e-mails
between Davis and Patterson, seemingly calling on him to
referee the fight, he forwarded it to his deputy, noting “More
of the same.” J.A. 657-58. Having reached his “upset
quotient,” he asked the deputy to “make sure this thing gets
fixed. I’m spending too much of my time reading e-mails.”
J.A. 224. The e-mail wrangling had no racial element on its
face, and Winn’s express reaction shows no more than that he
found it a diversion from more pressing duties.
9
As to the allegation that Winn broke a promise in
reassigning Patterson to a post not of Patterson’s choice, any
such breach of promise is not in itself evidence of retaliation.
Patterson doesn’t argue, much less submit evidence, that
promise-breaking and retaliation are correlated in such a way
that one is a sign of the other. It is not enough for plaintiff to
show that Winn’s decision was “not just, or fair,” see
Fischbach v. D.C. Dep’t of Corrections, 86 F.3d 1180, 1183
(D.C. Cir. 1996) (quoting Pignato v. American Trans Air,
Inc., 14 F.3d 342, 349 (7th Cir. 1994)); he must show that it
was retaliatory. Although Patterson offers evidence that
Winn’s only other transfer under the SES mobility program
moved an employee to a position of that employee’s choice,
the sample size is far too small to be meaningful, and
Patterson concedes that SES mobility transfers by other
managers were sometimes to positions the transferees did not
desire. Cf. id. (finding no inference of pretext to be drawn
from a “departure from the prescribed procedure [that] had
become the norm”).
Accordingly, the judgment of the district court is
Affirmed.