concluding that the failure to rotate the plaintiff into an acting manager position “surely qualifie[d] as an adverse employment action” because the employee’s manager “testified that he did not support [the employee’s] request for a [ ] promotion in part because she did not have any ‘supervisory duties’ in her current job”
How later courts described this case
- concluding that the failure to rotate the plaintiff into an acting manager position “surely qualifie[d] as an adverse employment action” because the employee’s manager “testified that he did not support [the employee’s] request for a [ ] promotion in part because she did not have any ‘supervisory duties’ in her current job”
- stating “an employee suffers an adverse employment action if he experiences 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” (quoting Forkkio, 306 F.3d at 1131)
- concluding that the failure to rotate plaintiff into an acting manager position could constitute a materially adverse employment action where the decision-maker testified that it was the most important function in the office and admitted that it affected future promotion opportunities
- finding that plaintiff failed to prove that her duties and responsibilities had increased so as to warrant an accretion of duties promotion, in part because she failed to accept defendant’s offer to conduct a desk audit of her position
Written by the judges who cited it.
The opinion
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 16, 2007 Decided December 14, 2007
No. 06-5402
VERLA M. WILEY,
APPELLANT
v.
JAMES K. GLASSMAN,
CHAIRMAN OF THE BROADCASTING BOARD OF GOVERNORS,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 99cv00975)
Leslie D. Alderman, III argued the cause and filed the briefs
for appellant.
Diane M. Sullivan, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Jeffrey A. Taylor,
U.S. Attorney, and Michael J. Ryan, Assistant U.S. Attorney. R.
Craig Lawrence, Assistant U.S. Attorney, entered an
appearance.
Before: BROWN and GRIFFITH, Circuit Judges, and
EDWARDS, Senior Circuit Judge.
2
Opinion for the Court filed Per Curiam.
Per Curiam: Appellant Verla Wiley, an African-American
woman, worked at the United States Information Agency
(“USIA”) from 1966 until her retirement in May 2005. In
October 1999, USIA was abolished and certain sections
reconstituted as the Broadcasting Board of Governors (“BBG”).
See 22 U.S.C. §§ 6531-6553. (For the remainder of this opinion,
appellee will be referred to as “BBG.”)
During the time periods that are relevant to issues in this
appeal, appellant worked as an International Radio Broadcaster
in the English-to-Africa Branch of the Africa Division at Voice
of America, formerly a division of USIA. In April 1999, Ms.
Wiley and two other plaintiffs filed a lawsuit in District Court
against USIA, alleging violations of Title VII of the Civil Rights
Act of 1964 (“Title VII”), as amended, 42 U.S.C. § 2000e et seq.
The plaintiffs claimed that they had been discriminated against
on the basis of their race and/or sex, subjected to a hostile work
environment, and retaliated against for engaging in activities
that were protected by Title VII. As of 2004, Ms. Wiley was the
only remaining plaintiff in the litigation before the District
Court.
____________________
The facts of this case have been described at length by the
District Court, see Kemi Southey-Cole v. Kenneth Y. Tomlinson,
Civ. A. No. 99-00975 (D.D.C. Oct. 2, 2006) (mem. op.); Kemi
Southey-Cole v. Kenneth Y. Tomlinson, Civ. A. No. 99-00975
(D.D.C. May 6, 2005) (District Court judge’s order adopting
magistrate judge’s report and recommendation in full); Kemi
Southey-Cole v. Marc B. Nathanson, Civ. A. No. 99-00975
(D.D.C. May 26, 2004) (magistrate judge’s report and
recommendation), so appellant’s allegations need not be
recounted in detail here. On May 6, 2005, the District Court
granted appellee’s motion to strike Ms. Wiley’s retaliatory
3
harassment claim, as well as her claim of retaliation based on a
reduction in the amount of airtime that she was responsible for
producing. Striking appellant’s claims effectively dismissed
them, and we treat the District Court’s decision with respect to
these two claims as if it had granted a motion pursuant to
Federal Rule of Civil Procedure 12(b)(6). The District Court
also granted appellee’s motion for summary judgment on all but
one of appellant’s remaining claims. Subsequently, on October
2, 2006, the District Court granted summary judgment to
appellee on Ms. Wiley’s remaining claim that she suffered
illegal retaliation when BBG forced her to use annual leave for
the time that she took to attend depositions related to this
lawsuit.
In this appeal, appellant claims that
1. she suffered discrimination and retaliation when
appellee failed to promote her to a GS-13 pay grade;
2. she suffered discrimination and retaliation when
appellee refused to allow her to participate in the
managing editor rotation;
3. she suffered retaliation when appellee retroactively
charged her annual leave for the time that she took to
attend depositions related to this lawsuit;
4. the District Court erred in granting appellee’s motion
to strike her retaliatory harassment claim; and
5. the District Court erred in granting appellee’s motion
to strike her retaliation claim stemming from the
reduction in the number of minutes of airtime that she
was assigned to produce.
We affirm the District Court’s grant of summary judgment
to appellee on appellant’s first three claims. We reverse the
District Court’s decision to strike appellant’s last two claims,
but grant summary judgment to appellee on both.
4
Standard of Review and Legal Standard for Title VII Claims
We review the District Court’s grant of summary judgment
de novo. Mastro v. Potomac Elec. Power Co., 447 F.3d 843,
849 (D.C. Cir. 2006). Summary judgment is appropriate only if
there is “no genuine issue as to any material fact and . . . the
moving party is entitled to a judgment as a matter of law.” FED.
R. CIV. P. 56(c). “The inquiry performed is the threshold inquiry
of determining whether . . . there are any genuine factual issues
that properly can be resolved only by a finder of fact because
they may reasonably be resolved in favor of either party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). In
determining whether there are genuine factual issues in dispute,
we must draw all reasonable inferences in favor of the
nonmoving party. Id. at 255. Insofar as we are treating the
District Court’s decisions to strike two of appellant’s claims as
dismissals under Rule 12(b)(6), “[o]ur standard of review under
Federal Rules 12(b)(6) and 56 is the same: de novo.” Wilson v.
Peña, 79 F.3d 154, 160 n.1 (D.C. Cir. 1996).
Under McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973), Title VII discrimination claims are assessed pursuant to
a simple three-step framework:
First, the plaintiff has the burden of proving by the
preponderance of the evidence a prima facie case of
discrimination. Second, if the plaintiff succeeds in proving
the prima facie case, the burden shifts to the defendant “to
articulate some legitimate, nondiscriminatory reason for the
[action in question].” Third, should the defendant carry this
burden, the plaintiff must then have an opportunity to prove
by a preponderance of the evidence that the legitimate
reasons offered by the defendant were not its true reasons,
but were a pretext for discrimination.
Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53
(1981) (quoting McDonnell Douglas, 411 U.S. at 802). To
5
establish a prima facie case of discrimination, a claimant must
show that “(1) she is a member of a protected class; (2) she
suffered an adverse employment action; and (3) the unfavorable
action gives rise to an inference of discrimination.” Brown v.
Brody, 199 F.3d 446, 452 (D.C. Cir. 1999). To establish a prima
facie case of retaliation, a claimant must show that (1) she
engaged in a statutorily protected activity; (2) she suffered a
materially adverse action by her employer; and (3) a causal
connection existed between the two. Id.; see also Burlington N.
& Santa Fe Ry. Co. v. White, 126 S. Ct. 2405, 2414-15 (2006)
(finding that Title VII’s anti-retaliation provision prohibits all
materially adverse actions, not merely those harms that are
specifically employment-related). In either situation, as the
Supreme Court has made clear, “[t]he burden of establishing a
prima facie case . . . is not onerous.” Burdine, 450 U.S. at 253.
Indeed, just two years after Burdine was decided, the Court
emphasized, in strikingly clear terms, that
[t]he prima facie case method established in McDonnell
Douglas was never intended to be rigid, mechanized, or
ritualistic. . . . Where the defendant has done everything
that would be required of him if the plaintiff had properly
made out a prima facie case, whether the plaintiff really did
so is no longer relevant. The district court has before it all
the evidence it needs to decide whether the defendant
intentionally discriminated against the plaintiff.
U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715
(1983) (internal citation and quotation marks omitted). In this
case, the District Court had before it hundreds of pages of
documents, testimony from various witnesses that was provided
during the investigation of appellant’s claims by BBG’s Office
of Civil Rights, and depositions taken after the lawsuit was filed.
So there is no doubt here that appellee aimed to “articulate[]
legitimate reasons for [the allegedly discriminatory or retaliatory
6
actions] and proffered evidence in support of those reasons.”
George v. Leavitt, 407 F.3d 405, 411 (D.C. Cir. 2005). Given
this record, we “need not address the Government’s contentions
that [appellant] failed to make out a prima facie case.” Id.
Rather, following the Court’s direction in Aikens, we will
“proceed to the ultimate question of discrimination vel non.” Id.
(internal quotation marks omitted).
First Claim: Failure to Promote to GS-13
Appellant claims that her failure to obtain a promotion to
the GS-13 level in 1997 and 1998 was the result of
discrimination based on her race and sex or retaliation for her
complaints to the BBG’s Office of Civil Rights. The District
Court held, in part, that appellant failed to establish a prima
facie case of discrimination, because she could not prove “that
anyone similarly situated was promoted when she was not.”
Kemi Southey-Cole v. Marc B. Nathanson, Civ. A. No. 99-00975
at 22 (D.D.C. May 26, 2004). The District Court applied an
erroneous legal standard in reaching this conclusion. Although
appellant certainly could have offered evidence of “similarly
situated” employees in support of her claim, she was not
required to offer such evidence in order to make out a prima
facie case. See Mastro, 447 F.3d at 850-51; Stella v. Mineta,
284 F.3d 135, 145-46 (D.C. Cir. 2002).
Nevertheless, because we review the District Court’s
decision de novo, we conduct an independent evaluation of the
record to determine whether appellant offered sufficient
evidence to prove discrimination vel non. We hold that she did
not. The undisputed evidence in the record establishes that there
were only two ways for an employee in appellant’s situation to
obtain a noncompetitive promotion (other than career ladder
promotions) at BBG: (1) an impact promotion, which is based
on “exceptional ability exhibited by the employee”; and (2) an
accretion of duty promotion, pursuant to which a position is
reclassified at a higher grade “because the duties and
7
responsibilities of the position have increased over a period of
time.” Supplemental Declaration of Donna S. Grace, Joint
Appendix (“J.A.”) 236. Only the second – “accretion of duty
promotion” – is at issue in this case.
Appellant offered virtually nothing to establish what her
original duties as a GS-12 International Radio Broadcaster had
been, what duties she was performing when she was denied a
promotion, and what responsibilities the GS-13 position
commonly entailed. Moreover, when BBG attempted to arrange
a desk audit, in which a job classification specialist would have
evaluated Ms. Wiley’s work responsibilities, Ms. Wiley refused.
Deposition of Verla M. Wiley (5/24/01), J.A. 842-43; Note to
the Record of Janet Davis (1/26/98), J.A. 1371. Rather, when
asked why she believed that she deserved a GS-13 promotion,
appellant testified, “I thought I was doing a great job . . . . I just
felt I deserved a 13.” Deposition of Verla M. Wiley (5/24/01),
J.A. 846. Although appellant attempts to compare herself to
Joseph DeCapua, another English-to-Africa employee who was
promoted to a GS-13 International Radio Broadcaster position,
her argument falls far short. There is clear evidence in the
record to indicate that DeCapua’s job responsibilities had grown
over time and that he had significantly greater responsibilities
than appellant did at the time of his promotion. See, e.g.,
Declaration of Fredrica B. Depew (11/9/01), J.A. 213;
Deposition of Barry Maughan (4/18/01), J.A. 1077-78;
Deposition of Joseph Anthony DeCapua (3/5/01), J.A. 916-18.
In sum, appellant failed to establish that she was denied a
promotion as a result of illegal discrimination or retaliation.
Appellant never proved that the duties and responsibilities of her
job had increased so as to warrant an accretion of duty
promotion. Without such evidence, appellant cannot prove that
the failed promotion was a pretext for either discrimination or
retaliation.
8
Second Claim: Nonparticipation in the
Managing Editor Rotation
During the time when Barry Maughan was Chief of the
English-to-Africa Division, he rotated the individuals who were
assigned to serve in the managing editor position. Appellant
claims she was denied the opportunity to participate in this
rotation because of illegal discrimination and retaliation.
The District Court erroneously found that appellant suffered
no adverse employment action as a result of her exclusion from
the managing editor rotation and, therefore, failed to make out
a prima facie case on this claim. An employment action may be
sufficient to support a claim of discrimination if it results in
“materially adverse consequences affecting . . . future
employment opportunities such that a reasonable trier of fact
could find objectively tangible harm.” Forkkio v. Powell, 306
F.3d 1127, 1131 (D.C. Cir. 2002). Exclusion from the managing
editor rotation surely qualifies as an adverse employment action.
Maughan, who was appellant’s manager, testified that he
did not support appellant’s request for a GS-13 promotion in
part because she did not have any “supervisory duties” in her
current job. Deposition of Barry Maughan (4/18/01), J.A. 1088-
89. And Maughan acknowledged that the required “supervisory
duties” included “be[ing] able to carry out the functions of a
managing editor and senior editor.” Id., J.A. 1073. He also
testified that, “outside of being a senior editor, [managing editor
is] the most important function in the shop.” Id. Given this
testimony from appellant’s manager, it can hardly be said that
Ms. Wiley suffered no adverse employment action when she
was barred from participating in the managing editor rotation.
Even though appellant may have suffered an adverse
employment action, this, without more, is not proof of illegal
discrimination or retaliation. On the record here, it is obvious
and undisputed that the responsibilities of managing editor were
9
time-consuming. See Declaration of Barry H. Maughan, J.A.
499-502. It is equally clear that, during the time period in
question, appellant, who was serving as Vice President of the
American Federation of Government Employees, Local 1812,
was very busy with union work. See Deposition of Verla Wiley
(6/6/01), J.A. 879-80; Deposition of Verla M. Wiley (5/24/01),
J.A. 817-20; Deposition of Barry Maughan (4/18/01), J.A. 1079,
1087-89. Appellant herself stated that she served in a managing
editor-type position at BBG in the 1980s for a show called
“Nightline Africa,” but had to stop after she became Vice
President of Local 1812 in 1990. Deposition of Verla M. Wiley
(5/24/01), J.A. 817-18. She responded in the affirmative when
asked, “And because you had more responsibilities as vice
president of the union, you couldn’t do that and be managing
editor, too?” Id. at 818. Appellant continued to hold the
position of Vice President of Local 1812 in 1996 and 1997,
when she sought to be included in the managing editor rotation.
Appellant does not claim that she was illegally
discriminated against on the basis of her union activities, nor
would such a claim be cognizable under Title VII. What is
noteworthy here is that appellant does not really contest
appellee’s contention that she was too busy with her union
duties to serve as managing editor. We therefore hold that
appellee offered a legitimate, nondiscriminatory reason for
appellant’s nonparticipation in the managing editor rotation and
appellant failed to prove that this reason was merely a pretext
for discrimination or retaliation proscribed by Title VII.
Third Claim: Retroactive Application of
Annual Leave Policy
Appellant contends that she suffered unlawful retaliation
when she was retroactively charged annual leave for attending
witness depositions related to this lawsuit. In February 2001,
Ms. Wiley approached her then-supervisor, Rebecca
McMenamin, about taking “administrative leave” – paid leave
10
that is not charged against an employee’s allotted annual leave
– to attend witness depositions. McMenamin responded via
email, indicating that administrative leave was unavailable in
such circumstances. Email from Rebecca McMenamin to Verla
Wiley et al. (2/14/01), J.A. 2077. That same day, appellant
discussed the administrative leave issue with William
Ohlhausen, Deputy General Counsel for BBG. Ohlhausen sent
an email the following day indicating that he was unable to
reach a conclusion as to whether administrative leave was
authorized in Wiley’s circumstances, and needed to research the
issue further. Email from William Ohlhausen to Verla Wiley et
al. (2/15/01), J.A. 61. Appellant continued attending
depositions.
On October 5, 2001, guidelines applicable to all Voice of
America employees were issued, delineating when employees
could use administrative leave in connection with Title VII
matters. Memorandum, J.A. 2113-14. These guidelines
prohibited employees from taking official time to attend
depositions other than their own. After this policy issued,
McMenamin emailed appellant to inform her that she would be
charged annual leave for the depositions she had previously
attended; McMenamin’s email noted that “[t]his policy indicates
there is no change from the guidance I first sent you on February
14th, 2001.” Email from Rebecca McMenamin to Verla Wiley
et al. (10/9/01), J.A. 2125. Appellant was subsequently charged
56 hours of annual leave for time she spent attending depositions
other than her own.
Appellant claims that BBG’s decision to retroactively
charge her annual leave was unlawful retaliation. As the District
Court found, however, appellant cannot overcome the
legitimate, nondiscriminatory reason for BBG’s decision to
charge her annual leave: No statute, regulation, or policy
authorized administrative leave for an employee in appellant’s
circumstances. In fact, during the time period at issue here,
11
neither BBG’s internal Manual of Operations nor the Negotiated
Labor Management Agreement between Local 1812 and BBG
authorized administrative leave for employees in appellant’s
situation. BBG Manual of Operations, J.A. 1765-68;
Negotiated Labor Management Agreement, J.A. 1764.
Appellant can hardly claim retaliation when she has not shown
that she was entitled to paid leave. The October 2001 guidelines
may have clarified the situation, but they did not cause appellant
to lose anything to which she was entitled before the guidelines
were issued. Furthermore, McMenamin’s February 14, 2001
email to Ms. Wiley provided appellant with more than adequate
notice that an attempt to take such leave would likely be
unsuccessful. Appellant’s decision to continue attending
depositions after receiving Ohlhausen’s email was, in the words
of the District Court, “a calculated risk.” Kemi Southey-Cole v.
Kenneth Y. Tomlinson, Civ. A. No. 99-00975 at 16 (D.D.C. Oct.
2, 2006). “[N]o reasonable jury could infer retaliation from the
agency’s decision to comply with existing law and agency
agreements.” Id. at 22.
Fourth Claim: Retaliatory Harassment
The District Court granted appellee’s motion to strike
appellant’s claim for retaliatory harassment, primarily on the
grounds that it was raised for the first time in appellant’s
opposition to appellee’s motion for summary judgment. This
was error. The factual basis for appellant’s “new” claim was
substantially similar to the hostile work environment claim that
appellant had alleged in her original complaint, and BBG did not
demonstrate that allowing appellant’s claim would cause undue
prejudice. Therefore, this claim should not have been struck.
The real issue . . . is not whether legal theories may be
pleaded but whether the original theory may be discarded
or augmented and recovery had on some other theory. The
federal rules, and the decisions construing them, evince a
belief that when a party has a valid claim, he should recover
12
on it regardless of his counsel’s failure to perceive the true
basis of the claim at the pleading stage, provided always
that a late shift in the thrust of the case will not prejudice
the other party in maintaining a defense upon the merits.
5 CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL
PRACTICE & PROCEDURE § 1219 at 281-83 (3d ed. 2004)
(footnote omitted); see also Alley v. Resolution Trust Corp., 984
F.2d 1201, 1207-08 (D.C. Cir. 1993) (allowing plaintiffs to add
an ERISA claim after motions for summary judgment had been
filed because there was no prejudice to the defendant).
The District Court granted summary judgment to appellee
on appellant’s hostile work environment claim, and that
judgment has not been appealed. In addition to granting the
motion to strike appellant’s retaliatory harassment claim, the
District Court held, in the alternative, that insofar as appellant’s
retaliatory harassment claim was merely a variation of her prior
hostile environment claim, it lacked merit for the same reasons
that the hostile environment claim had failed. During oral
argument, appellant’s counsel conceded that Ms. Wiley could
not prevail on her retaliatory harassment claim unless she could
establish that the alleged harassment resulted in a hostile
environment. See Hussain v. Nicholson, 435 F.3d 359, 366
(D.C. Cir. 2006) (noting that “[i]n this circuit, a hostile work
environment can amount to retaliation under Title VII”).
Because there is no claim here that the District Court erred in
granting summary judgment on appellant’s hostile environment
claim, appellant’s retaliatory harassment claim necessarily fails
as well. We therefore grant summary judgment for appellee on
this claim.
Fifth Claim: Reduced Airtime
The District Court granted appellee’s motion to strike
appellant’s final claim, i.e., that she suffered retaliation when
McMenamin reduced her airtime production from 17 minutes to
13
13 minutes. The District Court struck this claim on the grounds
that appellant failed to exhaust her administrative remedies.
Appellant filed an informal complaint of discrimination,
withdrew it on August 27, 2002, and never filed a formal
complaint specifically listing her airtime claim.
The District Court erred in striking appellant’s claim,
because the reduced airtime allegation “could have reasonably
been expected to grow out of [appellant’s] earlier complaint.”
Weber v. Battista, 494 F.3d 179, 184 (D.C. Cir. 2007) (internal
quotation marks omitted). Hattie Baldwin, the Director of the
USIA’s Office of Civil Rights, wrote to appellant confirming
that her complaints of discrimination and retaliation had been
received, acknowledged, and consolidated. Letter from Hattie
P. Baldwin to Verla M. Wiley (5/14/98), J.A. 407-08. The
complaints that were accepted for processing included the denial
of “training for supervisory/managerial roles within the Branch,”
the denial of Wiley’s “input” on “programming and policy with
regard to office procedures and broadcasts,” and the denial of
“career advancement and promotional opportunities.” Id. at
408. The record thus makes it clear that the airtime claim was
“like or related” to the claims of discrimination and retaliation
raised in appellant’s original complaint. Weber, 494 F.3d at
184. “Therefore, we conclude [appellant] gave [BBG] an
opportunity to resolve her claim administratively before she
filed her complaint in district court.” Id. The claim was
properly before the District Court and should not have been
struck.
Although it cannot be said that appellant failed to exhaust
her administrative remedies, we nonetheless grant judgment to
appellee. The District Court effectively dismissed appellant’s
claim pursuant to Federal Rule of Civil Procedure 12(b)(6).
Rule 12(b) states that, if, on a motion to dismiss, “matters
outside the pleading are presented to and not excluded by the
court, the motion shall be treated as one for summary judgment
14
and disposed of as provided in Rule 56, and all parties shall be
given reasonable opportunity to present all material made
pertinent to such a motion by Rule 56.” FED. R. CIV. P. 12(b).1
In this case, the District Court considered “matters outside the
pleading” in granting the agency’s motion to strike, and both
parties had a “reasonable opportunity to present all material
made pertinent” to the motion. The District Court, however, did
not convert what was ostensibly a 12(b)(6) motion to one for
summary judgment. Nonetheless, in these circumstances, this
court is free to characterize the District Court’s Rule 12(b)(6)
dismissal as a grant of summary judgment under Rule 56 and
affirm, so long as we are assured that both sides had a
reasonable opportunity to present evidence and there are no
genuine issues of material fact. See, e.g., Ctr. for Auto Safety v.
Nat’l Highway Traffic Safety Admin., 452 F.3d 798, 805 (D.C.
Cir. 2006). Finding no merit in appellant’s claim, we will grant
summary judgment to appellee.
Appellant’s claim lacks merit because she failed to establish
that a reduction in airtime responsibilities constituted a
materially adverse action for the purpose of establishing a prima
facie case of retaliation. As noted above, “an employee suffers
an adverse employment action if he experiences 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.” Forkkio, 306 F.3d at 1131. Appellant offered
nothing to the District Court or to this court establishing that the
1
Rule 12(d), which went into effect on December 1, 2007 and
is titled “Result of Presenting Matters Outside the Pleadings,” states
that “[i]f, on a motion under Rule 12(b)(6) or 12(c), matters outside
the pleadings are presented to and not excluded by the court, the
motion must be treated as one for summary judgment under Rule 56.
All parties must be given a reasonable opportunity to present all the
material that is pertinent to the motion.”
15
reduction in her airtime production – from 17 minutes to 13
minutes – could affect her compensation, grade, or opportunity
for future advancement.
Appellant has also failed to establish that “a reasonable
employee would have found the challenged action materially
adverse, which in this context means it well might have
dissuaded a reasonable worker from making or supporting a
charge of discrimination.” Burlington, 126 S. Ct. at 2415
(internal quotation marks omitted). Without such proof, there
can be no finding of unlawful retaliation. Actionable retaliation
claims are limited to those where an employer causes “material
adversity,” not “trivial harms.” Id. Appellant has failed to show
that the disputed reduction in airtime production was anything
other than a trivial harm, if that.
Conclusion
For the foregoing reasons, the District Court’s grant of
summary judgment to appellee with respect to appellant’s first
three claims is affirmed. The District Court’s decision to strike
appellant’s last two claims is reversed, and summary judgment
is granted to appellee on those claims as well.