Freedman v. MCI Telecommunications Corp.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 4, 2001 Decided July 6, 2001

No. 00-7238

Marshall Freedman,

Appellant

v.

MCI Telecommunications Corporation,

Appellee

Appeal from the United States District Court

for the District of Columbia

(98cv02753)

Bruce J. Terris argued the cause and filed the briefs for

appellant.

Harvey D. Rumeld argued the cause for appellee. With

him on the brief was Thomas F. O'Neil, III.

Before: Edwards, Chief Judge, Sentelle and Randolph,

Circuit Judges.

Opinion for the Court filed by Circuit Judge Randolph.

Randolph, Circuit Judge: Title VII of the Civil Rights Act

of 1964 forbids an employer from "discriminating against any

individual with respect to his compensation, terms, conditions,

or privileges of employment because of such individual's race,

color, religion, sex, or national origin." 42 U.S.C. s 2000e-

2(a)(1). Marshall Freedman contends that MCI Telecommu-

nications violated that prohibition by discriminating against

him because of his religion during his brief but tumultuous

employment there in 1997.

I.

The story begins in Spring 1997 when Freedman, an Ortho-

dox Jewish man, interviewed for a position as a Network

Services Engineer (NSE). Freedman arrived at the inter-

view wearing his religious garments: a yarmulka (also known

as a kippah or skullcap) and fringes. He was first inter-

viewed by Jeff Porter, who discussed Freedman's qualifica-

tions and showed him the facility. At the end of this inter-

view, Freedman explained to Porter that, because of his

religion, he must be permitted time off for various Jewish

holidays and that his schedule needed to accommodate the

Sabbath, which required him to be home before sundown on

Fridays. Freedman claims that Porter "stormed out" of the

interview when he learned of his religious restrictions.

Nonetheless, the second phase of the interview proceeded,

and Freedman met with Leo Smith, who would actually make

the hiring decision. During his interview with Smith, Freed-

man reiterated his scheduling needs. Shortly after this inter-

view, Smith contacted Freedman, extending a job offer in a

phone call to Freedman's wife, and confirming the offer by

written letter on May 1. Freedman began work on May 12.

By May 29, the company had its first inkling that some-

thing was wrong. On that date, Smith, the manager of the

MCI facility where Freedman was employed, received a five-

page, handwritten letter from Freedman detailing a number

of complaints about his working conditions as well as listing

several requests relating to his training and days that he

needed off for jury duty and Jewish holidays. Smith told

Porter, Freedman's immediate supervisor, to discuss the is-

sues with Freedman and work out solutions.

Among Freedman's early round of complaints was a lack of

access to computers and tools. Freedman was unhappy that

he had not yet been assigned his own computer workstation.

He was also concerned that he was required to share tools

with co-workers. During this early phase of his employment,

Freedman was being trained to perform his new job by

working with David Swithers and Peter Cartland.

In the first two weeks of June, Freedman reminded Porter

that he needed time off for the upcoming Shavous holiday.

Freedman claims that, during his discussions with Porter

regarding holiday leave, Porter expressed reluctance, even

anger, at allowing the time off. Shortly after these meetings,

Porter informed Freedman that he was to be moved to the

night shift.

On June 9, 1997, Freedman began his tenure on the night

shift and had the opportunity to work with a mentor, Scott

Huff. Freedman claims, though, that his experiences with

Huff were cut short because Huff was very busy covering for

other technicians who were on vacation.

On August 12, 1997, Freedman suffered a severe headache

and fainting spell that required him to go to the hospital.

For the next several weeks, he was absent from work on

disability leave. Freedman returned to work on October 6.

He claims that he did not have access to a computer worksta-

tion for the first three weeks of his return to the day shift.

On October 28, 1997, Freedman met with Edward Lynch, a

senior human resource generalist. Apparently in response to

this meeting, Freedman forwarded to Lynch an 18-page,

handwritten letter detailing his claim of discrimination. On

November 21, 1997, Freedman filed a charge of discrimina-

tion with the Equal Employment Opportunity Commission.

Meanwhile, MCI was undergoing significant structural

changes. Sometime in late October or early November,

William MacDonald, the Senior Manager of Operations for

Washington, D.C. and Virginia, asked Smith for a list of

employees in order of their usefulness. Smith provided Mac-

Donald with a ranking that placed Freedman at or near the

bottom of all the employees in his department. MacDonald

used this list as a basis for making recommendations to his

supervisor that employees, including Freedman, be cut from

several departments. On January 16, 1998, Freedman was

informed that he was to be terminated on March 28, 1998.

Freedman filed another charge of discrimination with the

EEOC on January 29, 1998. The EEOC declined to pursue

the charges on August 11, 1998, and Freedman brought suit

in the district court on November 11, contending that MCI

had violated Title VII of the Civil Rights Act.

On a motion by MCI, the district court granted summary

judgment against Freedman on August 22, 2000. Though

sometimes for different reasons, we agree with the district

court that MCI is entitled to judgment as a matter of law.

II.

Rule 56 indicates that summary judgment is appropriate

when there is "no genuine issue of material fact and ... the

moving party is entitled to judgment as a matter of law."

Fed. R. Civ. P. 56(c). The substantive law is used to identify

the "material" facts. See Anderson v. Liberty Lobby, 477

U.S. 242, 248 (1986). And there must be a "genuine" dispute

about those material facts; that is, the evidence must be

"such that a reasonable jury could return a verdict for the

nonmoving party." See id.

For this case, Title VII provides the legal framework.

Freedman is responsible for making out a prima facie case

that (1) he is in a protected class, (2) that MCI took an

adverse employment action against him and (3) that MCI

took the adverse employment action because of his member-

ship in a protected class. See Brown v. Brody, 199 F.3d 446,

452 (D.C. Cir. 1999). It is undoubted that Freedman is a

member of a protected class. The contest is in whether he

can demonstrate adverse employment actions taken because

of his protected status.

Freedman sees discrimination in the following occurrences.

First, he claims that his assignment to the night shift was an

act of discrimination. Second, he perceives discrimination

against him in training opportunities. In a third, and related,

complaint, he claims that he was subject to disparate treat-

ment regarding MCI's mentorship program. Fourth, he

claims that he was denied the use of computers and tools

during his tenure. Fifth, he claims that he was given inap-

propriate assignments. Sixth, he thinks he was denied one-

on-one feedback from supervisors given to other employees.

Seventh, he claims that he was badly treated by Jeff Porter.

Eighth, and finally, he contends that he was discharged

because the joint operation of the other actions he describes

made him underqualified and ripe for discharge. We con-

clude that summary judgment was appropriate because each

of the activities complained of, taken alone or collectively,

fails to rise to the level of an adverse employment action,

lacks evidence of disparate treatment, or both.

A.

Consider first the problem of Freedman's assignment to

the night shift. Freedman contends that he was transferred

to the night shift because of his religion. Specifically, he

contends that Porter moved him to the night shift in retalia-

tion for his request for time off for Jewish holidays. The

disparate treatment, according to Freedman, was that NSEs

were not transferred to the night shift unless they agreed to

go. Since Freedman objected to being moved, he contends

that he was treated both adversely and differently than his

co-workers.

The district court, relying on our decision in Brown, con-

cluded that Freedman had not suffered an adverse employ-

ment action because the transfer to the night shift was lateral

and there was no corresponding decrease in salary or bene-

fits. See Freedman v. MCI, No. 98-2753, slip op. at 15

(D.D.C. Aug. 24, 2000). We think that this may read our

decision in Brown too broadly. In Brown, we held that a

purely lateral transfer was not, in itself, an adverse employ-

ment action unless "there are some other materially adverse

consequences affecting the terms, conditions, or privileges of

[the plaintiff's] employment ..." Brown, 199 F.3d at 457.

Thus, it is not enough to ask whether the transfer was purely

lateral. We must also ask if other changes in terms, condi-

tions, or privileges followed from the transfer. It is hard to

say that transfer to the night shift would not constitute such a

change, at least in conditions or privileges. Freedman testi-

fied that the change in hours interfered with his education.

Further, the fact that Freedman received a pay differential

for working on the night shift does not, as the district court

held, necessarily demonstrate that he was not adversely

affected by the change. Rather, it could demonstrate that

the night shift was an undesirable assignment.

Freedman fails to make out a claim of discrimination

because he has not established that he was treated differently

than other employees because of his religion. MCI contends

that Freedman's transfer to the night shift can be explained

by Porter's conclusion that Freedman would receive better

training on the night shift. In a case such as this, where the

plaintiff claims discrimination and the defendant offers evi-

dence of a legitimate reason for an adverse action, the burden

shifts to the plaintiff to produce evidence rebutting the em-

ployer's legitimate reason. See Texas Dep't of Cmty. Affairs

v. Burdine, 450 U.S. 248, 252-53 (1981); Cones v. Shalala,

199 F.3d 512, 516 (D.C. Cir. 2000). Freedman offered no

evidence that the proffered reason was a pretext. Specifical-

ly, in his statement to the district court of disputed facts,

Freedman suggested that the pace of the night shift was

more hectic and that technicians on the night shift were

expected to have more skills in different areas. While there

may be a genuine factual dispute about whether the work on

the night shift was more or less hectic or demanding, it still

does not answer the fundamental argument made by MCI:

"Porter hoped that he would have a better opportunity to

progress more quickly by working closely with some of the

better technicians who were on the mid shift." Porter testi-

fied that he transferred Freedman because he had more

confidence in the night shift technicians' ability to train

Freedman, who had not responded well to training on the day

shift. Freedman presented no evidence to rebut this.

Freedman contends that, quite apart from the question

whether he was assigned to the night shift for a legitimate

reason, he was treated differently because he was forced to

switch to the night shift without his acquiescence. In order

to survive a summary judgment motion, a plaintiff must have

more than a scintilla of evidence to support his claims. See

Anderson, 477 U.S. at 252. Freedman has failed to meet this

burden for establishing his contention that workers were not

assigned to the night shift without their permission. Freed-

man marshals little evidence to show this fact. He cites one

employee's affidavit attesting to the fact that Porter once

asked him if he would work the night shift and did not assign

him to the night shift when he refused. He also cites the

deposition of Charles Moon. Moon describes an incident in

which Jeff Porter told him that he needed to work the night

shift and Moon agreed. However, Moon indicated that he

interpreted Porter's statement to mean that he could have

declined. Finally, he cites to the deposition of Jeffrey

Spriggs, who said that Porter "usually works out the shifts

according to your preference. And that at that time the

needs of the business will warrant what we have to work." If

anything, this final piece of testimony suggests that Porter

made efforts to assign people the times that they desired, but

that business needs may have trumped those desires. The

other two pieces of evidence merely demonstrate that Porter

offered workers a choice on distinct occasions. As a whole,

they hardly rise to the level of demonstrating the existence of

a policy against assigning people to the night shift against

their wishes.

B.

Freedman's claim that he was denied intensive one-on-one

training given to other technicians is similarly flawed. MCI's

training program relied heavily on hands-on training in which

a newly hired NSE would learn by working with more

experienced NSEs. Freedman claims that he was denied the

training opportunities offered to other technicians because he

was assigned to train with relatively inexperienced NSEs,

David Swithers and Peter Carlin.

The district court found that the differences in training

between Freedman and other technicians were " 'marginal

distinctions with uncertain consequences' " that could not

support a discrimination claim. Freedman, slip op. at 14

(quoting Millburn v. West, 854 F. Supp. 1, 14 (D.D.C. 1994)).

While a denial of training may rise to the level of an adverse

employment action, see Turlington v. Atlanta Gas Light Co.,

135 F.3d 1428, 1436 n.16 (11th Cir. 1998); see also 42 U.S.C.

s 2000e-2(d) (barring employers from discriminating in "ad-

mission to, or employment in, any program established to

prove apprenticeship or other training"), we agree with the

district court that there is insufficient evidence to demon-

strate that Freedman was treated differently than his peers.

The essence of his claim is that he was assigned to less

experienced NSEs for training. Swithers indicated that he

joined MCI in October 1996, so he had about six months'

experience when he began training Freedman. It is true that

some other technicians were assigned to more experienced

partners. LaTaryn Dexter, for one, was assigned to Gary

Hobson, who had been with MCI for about twelve years.

However, the evidence also shows that many of Freedman's

peers were trained by NSEs who had about as much or less

training than Swithers. Swithers himself was trained by

Philip Cofer when he started in October 1996. At that point,

Cofer had been a NSE for a scant four months. Kent Rice

was also trained by Swithers, but in March 1997, when

Swithers had been employed for only four months. Sherry

Porter, who joined MCI only a couple of weeks after Freed-

man was also trained by Swithers and reports that "[t]his

training [was] extremely important to my being able to do my

job."

Nor does the evidence support a claim that Freedman was

hobbled by a training period shorter than those afforded to

other NSEs. The other NSEs report training with another

employee for times ranging from two weeks to four months.

Sherry Porter, who was hired at about the same time as

Freedman, reports that she trained for about a month, a span

of time decidedly similar to the training period Freedman

received from his hire date of May 12 to the date he started

on the night shift, June 9. This, of course, does not even

include the additional training that Freedman was expected

to receive on the night shift.

C.

In a similar vein, Freedman claims that he was denied the

benefits of a mentorship program enjoyed by other MCI

employees. The mentorship program was designed to pro-

vide additional training to new NSEs. Under the program,

experienced engineers from other MCI locations visited the

Washington terminal and assisted newer workers while more

experienced technicians were occupied with other tasks.

Again, assuming that a training program is a condition or

term of employment, Freedman has failed to demonstrate

that he was treated differently with regard to this particular

training program. Freedman reports that he received 10 to

15 hours of mentoring from Scott Huff during one week on

the night shift. (He was evidently well enough satisfied by

this experience that he sent an e-mail to Leo Smith, thanking

him for the opportunity.) Both Sherry Porter and Kent Rice

report that they were mentored for one week. There is

nothing in either the Kent Rice or Sherry Porter affidavit to

indicate that they spent eight hours per day with the mentor.

Indeed, that would be a rather strange outcome in light of the

unrebutted testimony by MacDonald to the effect that men-

torships were not given to individuals, but that a mentor was

essentially shared by whichever new NSEs were working on

a particular shift. Because Freedman has failed to raise the

necessary evidence of discriminatory treatment, his claim

here fails.

D.

There is likewise no way to conclude on this record that

Freedman was treated differently regarding access to tools

and computers. Freedman complained in the district court

that MCI had violated Title VII "by (a) failing to provide

plaintiff with a work station, [and] (b) failing to provide

plaintiff with tools needed to perform his duties." Compl.

p 43. It seems beyond dispute that, when Freedman began

work at MCI, he was not assigned a computer for his

personal use. Freedman's claim of discrimination rests on

his belief that everyone else was assigned a computer, and he

was not.

However, in the context of the other evidence in the case,

Freedman's mere belief that others were given access to

computers while he was denied is insufficient for his claim to

survive summary judgment. See Hall v. Giant Food, Inc.,

175 F.3d 1074, 1079-80 (D.C. Cir. 1999). There is evidence of

a shortage of computers on the day shift. Freedman himself

acknowledges that this shortage meant that some people were

given access to computers and others were not. Cf. Hall, 175

F.3d at 1080 (where plaintiff did not even dispute existence of

neutral policy explaining his treatment, employers explana-

tion is "credible and unrefuted"). In essence, the MCI

terminal appeared to operate as sort of a free market: those

who had tasks to perform on a computer would wait until one

became available, perform their tasks and move on to other

business. The affidavits that Freedman submitted to support

his complaint bear this out. Dexter and Rice both report that

they had to share computer access during their initial training

periods and beyond. Sherry Porter indicated that she shared

her workstation until, like Freedman, she was transferred to

the night shift. While MCI's approach to managing its

employees and resources may have been less than ideal, all of

the employees, Freedman included, operated under the same

system. Since Title VII is designed to remedy discrimina-

tion, not poor management practices, Freedman has failed to

provide evidence that would support a claim.

Though the question may be closer, the issue is essentially

the same with tools. Freedman complains that other employ-

ees were assigned sets of tools and he was not. This is true

to a point. Dexter, Rice and Swithers all report that they

were assigned tools as soon as they were employed at MCI.

However, it appears that this practice was haphazard: Jeff

Porter testified that he "gave out tools when [he] could get

them," but that he "couldn't really tell you who had tools and

who did not have tools." Like Freedman, Sherry Porter

indicated that she was initially not personally assigned a set

of tools.

Much as it did with access to computers, MCI expected

employees to share resources to complete tasks. Jeff Porter

testified that "tools were available on the floor. One need

only to open a desk drawer and you can usually find all the

tools you need." Freedman's testimony on the matter is

contradictory. In his affidavit, he contends that "I had

difficulty in obtaining use of a computer, workstation, and

tools from other employees" and that "[t]his interfered with

my work...." However, in his deposition, he indicates that

he was able to borrow the necessary tools from other employ-

ees (though sometimes with a wait). We need not resolve the

contradiction, though. The evidence is clear that Sherry

Porter, who was hired at roughly the same time as Freedman

was not given her own set of tools until she had worked at

MCI for three months. That Freedman was not personally

assigned a set of tools in his first few months could hardly

indicate that he was treated differently than his peers.

It is true that Freedman was not assigned a set of tools

upon his return to MCI in October. However, by this point

in his tenure with MCI, his assignments had changed.

Though there appears to be some confusion about his actual

assignment, Freedman was assigned to work either in a

group called "install" or a group that was in transition from

"install" to "maintenance." Though the record does not

illuminate the differences between these groups of tasks, it is

clear that while working on the daytime "install" task, Freed-

man would only occasionally need tools in order to perform

wiring tasks. Work requiring such tools was generally per-

formed at night. Thus, even assuming that Freedman was

denied access to tools after he returned from his illness in

October, the interference with his work was minimal, and

could not rise to the level of an adverse employment action.

E.

Freedman also complains that he was given inappropriate

assignments--"junk jobs" in his terms. Specifically, he

claims that he was given special tasks--such as inventorying

parts and teaching classes--not given to other workers. As-

suming, as we must, the truth of this charge, we cannot say

that he was unlawfully discriminated against. Quite simply, a

temporary assignment to a less desirable task does not create

liability under Title VII unless it results in a diminution in

pay or benefits or affects such things as future employment

opportunities "such that a reasonable trier of fact could

conclude that the plaintiff has suffered objectively tangible

harm." Brown, 199 F.3d at 457. There is no evidence to

suggest that Freedman was harmed by his temporary assign-

ment to tasks he found unpleasant or undesirable, and

"[m]ere idiosyncracies of personal preference are not suffi-

cient to state an injury." Id.

F.

Freedman's complaint that he received inadequate feed-

back similarly fails to rise to the level of demonstrating an

adverse employment action. Freedman's complaint stems

from the quarterly performance reviews that MCI employees

received from supervisors. Porter reviewed Freedman's per-

formance twice--once on July 15, 1997, and again on Novem-

ber 4, 1997. Freedman contends that both of these sessions

were inadequate because Porter did not provide Freedman

with adequate guidance or feedback regarding his job perfor-

mance.

We agree with the district court that, even if Freedman's

evaluations were less complete than those given his co-

workers, those deficiencies could not constitute a sufficient

change in the terms and conditions of his employment to

support a claim. See Freedman, slip op. at 13-14. In Brown,

we wrote that a negative performance evaluation did not rise

to the level of an adverse employment action. See Brown,

199 F.3d at 458. It is hard to fathom the logic that while a

poor evaluation is not an adverse employment action, no

evaluation is an adverse employment action. By themselves,

Freedman's allegedly limited feedback sessions cannot be

considered discriminatory changes in the terms or conditions

of his employment.

G.

Freedman's final specific complaint is that Jeff Porter

exhibited a generally nasty attitude toward him while he

worked for MCI. While Freedman does not say it in so many

words, we take this as a traditional "hostile atmosphere"

complaint. Of course, an employee may experience a work

environment so tainted with hostility that the terms and

conditions of employment may be considered changed. See

Harris v. Forklift Sys., 510 U.S. 17, 21 (1993). Often, deter-

mining whether an environment is sufficiently hostile is a

difficult task. The appropriate standard "takes a middle path

between making actionable any conduct that is merely offen-

sive and requiring the conduct to cause a tangible psychologi-

cal injury." Id.

In this case, Freedman's evidence of religious hostility is

limited. He cites a single explicit episode in which he alleges

that Jeff Porter, after negotiating with a supervisor for a

printer, said to Freedman that "Soon I'm going to be the only

one at this terminal wearing a Yarmulka." Freedman took

this as a religious slander. Even so, such a comment is

insufficient to establish an atmosphere of hostility. As the

Supreme Court has recently reminded us, a singular stray

comment does not a hostile environment make. See Clark

County Sch. Dist. v. Breeden, 121 S. Ct. 1508, 1510 (2001);

see also Faragher v. Boca Raton, 524 U.S. 775, 788 (1998);

Park v. Howard Univ., 71 F.3d 904, 906-07 (D.C. Cir. 1996).

Freedman's only other pieces of evidence are three state-

ments of co-workers regarding Porter's behavior. In his

statement of disputed facts, Freedman characterizes these

statements as demonstrating that "Mr. Porter's treatment of

plaintiff has been described by other NSE's [sic] as 'with

indifference,' 'badly and exhibited a nasty attitude towards

him,' and 'differently than other NSE's [sic].' " Plaintiff's

Local Rule 108(h) Statement of Facts as to Which There

Exists a Genuine Dispute p 3. However, Freedman over-

states the claims made by his fellow employees.

LaTaryn Dexter's affidavit indicates that Porter treated

Freedman with "indifference," but gives an acceptably non-

discriminatory explanation for his behavior: "He seemed

irritated with Mr. Freedman because he asked numerous

questions." Likewise, Sherry Porter indicated that Jeff Port-

er treated Freedman "differently." However, Sherry Port-

er's statement deals not with the atmosphere of the terminal,

but with the assignments that Freedman was given, an issue

that we already discussed. Philip Cofer stated that "Mr.

Porter treated Marshall Freedman badly and exhibited a

nasty attitude towards him." A mere "nasty" attitude exhib-

ited by a supervisor is insufficient to establish a hostile

atmosphere, especially where, as here, there is no evidence

that the "nasty" attitude is pervasive and constant. See

Phillips v. Taco Bell Corp., 156 F.3d 884, 890 (8th Cir. 1998).

H.

Freedman claims that his discharge was the result of

discrimination. He does not claim that the actual discharge

was motivated by his religion. Rather, he claims that the

collective impact of the various religiously-motivated slights

he allegedly suffered was to ensure that he was a poorly-

trained, under-performing worker ripe for discharge when

MCI reorganized. We might be persuaded by this rationale,

if there were evidence to support it. We have already

established that there is insufficient evidence to establish that

Freedman was subjected to different treatment regarding his

transfer to the night shift, his training, his access to a mentor,

his access to computers or his access to tools. The only

remaining complaints are that he was given inadequate feed-

back and that he was given inappropriate assignments. Even

if we accept Freedman's invitation to consider the "totality of

the adverse actions" taken against him, we cannot see that

the limited feedback and a few stray assignments would be

sufficient to constitute adverse action which caused his dis-

missal.1

Affirmed.

1 We have considered and rejected Freedman's other arguments.

They occasion no need for a written opinion. See D.C. Cir. R. 36(b).