Forkkio, Samuel E. v. Powell, Donald

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.