Patterson v. Johnson

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

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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

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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,

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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

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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.

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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.