Baloch v. Kempthorne

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 23, 2008 Decided December 30, 2008

No. 07-5330

MOHAMMAD S. BALOCH,

APPELLANT

v.

DIRK KEMPTHORNE, SECRETARY OF THE INTERIOR,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 03cv01207)

Robert C. Seldon argued the cause for appellant. With

him on the briefs was Molly E. Buie.

Rhonda C. Fields, Assistant U.S. Attorney, argued the

cause for appellee. With her on the brief were Jeffrey A.

Taylor, U.S. Attorney, and R. Craig Lawrence and Michael J.

Ryan, Assistant U.S. Attorneys.

2

Before: GRIFFITH and KAVANAUGH, Circuit Judges, and

WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge

KAVANAUGH.

KAVANAUGH, Circuit Judge: In 1991, Mohammad

Baloch joined the Department of the Interior as one of two

Water Rights Specialists in the Office of Trust

Responsibilities at the Bureau of Indian Affairs. In the mid-

1990s, the other Water Rights Specialist departed, leaving

Baloch as the only employee in that role. For budgetary

reasons, the Department did not fill the second position for

several years. In 2001, a second Water Rights Specialist was

hired, and some of Baloch’s duties were shifted to the new

Specialist. Baloch was apparently unhappy with the new

arrangement, and he clashed with his supervisor. Baloch

eventually sued, raising discrimination, retaliation, and hostile

work environment claims under Title VII, the Age

Discrimination in Employment Act, and the Rehabilitation

Act.

On the discrimination and retaliation claims, the District

Court awarded summary judgment to the Government

because Baloch failed to show that he had suffered an adverse

action, an essential element of a discrimination or retaliation

claim. We affirm the District Court’s judgment on Baloch’s

discrimination and retaliation claims for two alternative

reasons. First, as the District Court concluded, Baloch did not

produce sufficient evidence that he suffered an adverse action.

Second, he did not produce sufficient evidence that the

Government’s asserted non-discriminatory reasons for the

actions were pretextual and that he suffered discrimination on

account of his race, religion, age, or disability, or retaliation

on account of his bringing a discrimination complaint.

3

On the hostile work environment claim, the District Court

ruled that Baloch presented insufficient evidence to support

such a claim. We affirm the District Court’s judgment on that

point as well.

I

Since 1991, Mohammad Baloch has worked as a GS-14

Water Rights Specialist in the Natural Resources Division of

the Office of Trust Responsibilities at the Bureau of Indian

Affairs. When Baloch began work in his division, there were

three professionals: a Chief and two Water Rights Specialists.

In the mid-1990s, the Branch Chief and the other Water

Rights Specialist departed, leaving Baloch as the only

professional employee in the division. For about five years,

those other positions were not filled, primarily for budget

reasons. In 2000, the Director of the Office of Trust

Responsibilities, Terrance Virden, appointed Jeffrey Loman

as the new Chief of the Natural Resources Division, and

Baloch began reporting to Loman. In May 2001, at Virden’s

direction, Loman hired Daniel Picard as a second GS-14

Water Rights Specialist. The hiring of Picard returned the

office to the same strength it had maintained before 1996 –

one Chief and two Water Rights Specialists.

In June 2001, shortly after Picard’s hiring, Baloch filed

an informal administrative complaint alleging discrimination

because of race, religion, age, and disability. In August 2001,

Baloch filed a formal complaint with the Department of the

Interior.

In the ensuing months and years, Baloch and his

supervisor Loman clashed. Loman issued “letters of

counseling” to Baloch in January 2002 and March 2003 and a

4

“letter of reprimand” in April 2003. He imposed sick leave

restrictions on Baloch in February 2003 and renewed them in

August 2003. He proposed that Baloch be suspended for two

days in September 2003 and for 30 days in January 2004, and

he assisted a grievance official by drafting a decision on the

latter proposal. He gave Baloch a performance review of “not

achieved” in October 2003. The two engaged in verbal

altercations in February, March, August, and October 2003.

On one occasion, Loman allegedly threatened to have Baloch

arrested, led out of the building in handcuffs, and jailed.

In June 2003, Baloch sued in U.S. District Court for

discrimination, retaliation, and hostile work environment in

violation of Title VII of the Civil Rights Act, 42 U.S.C.

§ 2000e-16, the Age Discrimination in Employment Act, 29

U.S.C. §§ 621 et seq., and the Rehabilitation Act, 29 U.S.C.

§§ 701 et seq. (Baloch’s administrative complaint was

subsequently dismissed because the Department of the

Interior determined that the District Court would address the

same issues.)

As to the discrimination and retaliation claims, the

District Court granted the Government’s motion for summary

judgment, concluding that Baloch failed to show that he had

suffered adverse actions as required to bring a claim under

those employment discrimination laws. The District Court

also concluded that Baloch had not produced sufficient

evidence of an objectively hostile work environment for

purposes of that claim. Baloch appeals, and our review is de

novo.

II

We first address Baloch’s discrimination claim. Under

Title VII, the ADEA, and the Rehabilitation Act, the two

5

essential elements of a discrimination claim are that (i) the

plaintiff suffered an adverse employment action (ii) because

of the plaintiff’s race, color, religion, sex, national origin, age,

or disability. See 42 U.S.C. § 2000e-16(a); 29 U.S.C. §§ 621

et seq.; 29 U.S.C. §§ 701 et seq.; Adeyemi v. District of

Columbia, 525 F.3d 1222, 1226 (D.C. Cir. 2008); Brady v.

Office of Sergeant at Arms, 520 F.3d 490, 493 (D.C. Cir.

2008); see also Brown v. Brody, 199 F.3d 446, 452 (D.C. Cir.

1999) (race discrimination under Title VII); Barnette v.

Chertoff, 453 F.3d 513, 515 (D.C. Cir. 2006) (age

discrimination under the ADEA); Breen v. Dep’t of Transp.,

282 F.3d 839, 841 (D.C. Cir. 2002) (disability discrimination

under the Rehabilitation Act). A plaintiff must prove both

elements to sustain a discrimination claim.

A

In most employment discrimination cases that reach

federal court, there is no dispute that the employee has

suffered an adverse employment action, and the sole question

is whether the action occurred because of discrimination. See

Adeyemi, 525 F.3d at 1227; Brady, 520 F.3d at 493, 494 n.2.

In this case, however, the employer also contests whether

Baloch suffered an adverse action.

Baloch alleges that the change in his substantive duties

after another Water Rights Specialist was hired constituted an

adverse employment action. The initial problem for Baloch’s

legal argument is that he was not fired or denied a job or

promotion, and he did not suffer any reductions in salary or

benefits, which are the typical adverse actions in employment

discrimination cases. See, e.g., Brown, 199 F.3d at 455-56.

To be sure, in Czekalski v. Peters, this Court said that an

adverse employment action need not entail a loss of salary,

6

grade level, or benefits if the plaintiff has “raised a genuine

issue as to whether the reassignment left [the employee] with

‘significantly different’ – and diminished – supervisory and

programmatic responsibilities.” 475 F.3d 360, 364 (D.C. Cir.

2007) (emphasis added).1 Czekalski, for example, produced

evidence that she went from overseeing 260 federal

employees, 700 contractors, 50 programs, and a $400 million

budget, to overseeing fewer than 10 employees and one

program with a minimal budget. She also went from

reporting directly to the FAA’s Associate Administrator for

Research and Acquisitions to reporting to a former peer. Id.

at 364-65. This was enough for her to overcome a summary

judgment motion and proceed to trial. Cf. Bibbs v. Bd. of

Trustees for Univ. of Ill., No. 98-3029, 1999 WL 569028, at

*2 (7th Cir. July 30, 1999) (finding significantly diminished

responsibilities where plaintiff lost supervisory and

coordination responsibilities and was left with phone, filing,

and scheduling duties).

Unlike in Czekalski, however, Baloch’s duties in the

wake of Picard’s hiring did not constitute qualitatively

inferior work requiring any less skill or knowledge. Cf.

Currier v. Postmaster General, 304 F.3d 87, 88-89 (D.C. Cir.

2002). It is true that some of Baloch’s previous

responsibilities were no longer his. But that occurred because

another Water Rights Specialist had been hired, returning the

unit to the same strength it once had. An adverse employment

action does not occur merely because an employer adds more

people to the team assigned to a particular task, particularly

1

Some courts of appeals have interpreted the adverse action

requirement more narrowly than Czekalski. See, e.g., Grayson v.

City of Chicago, 317 F.3d 745, 750 (7th Cir. 2003); Kocsis v. Multi-

Care Mgmt., 97 F.3d 876, 886-87 (6th Cir. 1996). Even under the

more generous interpretation in Czekalski, however, Baloch still has

not sufficiently shown an adverse employment action.

7

when the addition simply brings the team back to its former

numbers. Indeed, we have previously underscored our

hesitancy to engage in “judicial micromanagement of

business practices” by second-guessing employers’ decisions

about “which of several qualified employees will work on a

particular assignment.” Mungin v. Katten Muchin & Zavis,

116 F.3d 1549, 1556 (D.C. Cir. 1997). So too here. Any

reassignment of Baloch’s duties that occurred upon Picard’s

hiring did not itself constitute an adverse employment action

for purposes of a discrimination claim.

B

Even if we were to assume an adverse action, however,

Baloch did not produce sufficient evidence that his

employer’s asserted legitimate non-discriminatory reason for

hiring Picard was not the actual reason and that Baloch

suffered discrimination on an impermissible ground. See

Adeyemi, 525 F.3d at 1226; Brady, 520 F.3d at 495.2

2

For purposes of this point, we assume arguendo that Baloch

has shown an adverse action (a point that, as noted above, is

uncontested in most discrimination cases). In cases where the

employee has suffered an adverse action and the employer has

asserted a legitimate, non-discriminatory reason for that action, we

do not consider the McDonnell Douglas prima facie factors. See

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); see

also U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711,

715 (1983); Brady, 520 F.3d at 494. Rather, we ask only whether

“the employee produced sufficient evidence for a reasonable jury to

find that the employer’s asserted non-discriminatory reason was not

the actual reason and that the employer intentionally discriminated

against the employee” on an impermissible ground. Brady, 520

F.3d at 494; see also Aikens, 460 U.S. at 714-16; Adeyemi, 525

F.3d at 1226.

8

In his deposition, Virden testified that there had been two

Water Rights Specialists before budget cuts in 1996 and that

Picard’s employment simply returned the office to its

previous arrangement. Virden also explained that he hired

Picard because of BIA’s need to strengthen the budget

justification process and to install someone with a legal

background. Picard, who had a law degree, filled the gaps

that had been identified.

Because the employer asserted a legitimate, non-

discriminatory reason for the action, we consider only

whether Baloch “produced evidence sufficient for a

reasonable jury to find that the employer’s stated reason was

not the actual reason and that the employer intentionally

discriminated against [Baloch] based on” his race, religion,

age, or disability. Brady, 520 F.3d at 495. Baloch has

produced no direct evidence of discriminatory animus by the

decisionmaker and failed to produce any other evidence that

discredits the underlying reason for Picard’s hiring and the

subsequent shift in responsibilities. Therefore, even assuming

Baloch had suffered an adverse employment action, he did not

produce evidence sufficient to overcome summary judgment

on the question whether he suffered impermissible

discrimination.3

III

We next consider Baloch’s retaliation claim. Baloch

contends that the Government illegally retaliated against him

for filing an administrative complaint. He argues that the

3

With respect to the Rehabilitation Act claim, it is not clear

that Baloch showed evidence that he was disabled within the

meaning of the statute. See 29 U.S.C. § 705(20)(B). Because we

reject Baloch’s claims for other reasons, however, we need not

further address that issue.

9

District Court erred in holding “that none of the alleged

[retaliatory] measures were adverse actions.” Baloch v.

Norton, 517 F. Supp. 2d 345, 354 n.7 (D.D.C. 2007).

To prove retaliation, the plaintiff generally must establish

that he or she suffered (i) a materially adverse action

(ii) because he or she had brought or threatened to bring a

discrimination claim. See 42 U.S.C. § 2000e-3(a); 29 U.S.C.

§§ 621 et seq.; 29 U.S.C. §§ 701 et seq.; Burlington N. &

Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (internal

quotation marks omitted) (defining “materially adverse” as an

action that would have “dissuaded a reasonable worker from

making or supporting a charge of discrimination”) (quoting

Rochon v. Gonzales, 438 F.3d 1211, 1219 (D.C. Cir. 2006)).4

A

According to Baloch, Loman retaliated against him in a

variety of ways. Loman imposed sick leave restrictions –

requiring that a physician certify the problem and date of

treatment each time Baloch submitted a leave request. Baloch

asserts that the procedures made it impossible for him to take

sick leave because his physicians were too busy to write the

4

“Adverse actions” in the retaliation context encompass a

broader sweep of actions than those in a pure discrimination claim.

Due to differences in the language and purposes behind Title VII’s

retaliation and discrimination provisions, the Supreme Court

clarified in Burlington N., 548 U.S. 53, that the requirements are

distinct: Retaliation claims are “not limited to discriminatory

actions that affect the terms and conditions of employment” and

may extend to harms that are not workplace-related or employment-

related so long as “a reasonable employee would have found the

challenged action materially adverse.” Id. at 64, 68; see also 1

BARBARA T. LINDEMANN & PAUL GROSSMAN, EMPLOYMENT

DISCRIMINATION LAW 1026-27 (4th ed. 2007).

10

requisite certifications, and that they amounted to “materially

adverse” actions. But his claim is not substantiated by

evidence of any instances when the procedures led him to

forgo leave. And his leave requests, in fact, were granted

every time. Baloch thus has not shown that the restrictions

constituted materially adverse actions.

Baloch further argues that Loman’s proposed 2-day and

30-day suspensions were materially adverse actions that

tarnished his reputation and caused emotional distress. But

courts have been unwilling to find adverse actions where the

suspension is not actually served. Cf. Whittaker v. N. Ill.

University, 424 F.3d 640, 647 (7th Cir. 2005) (“[A]

suspension without pay that is never served does not

constitute an adverse employment action.”); see also Gupta v.

Fla. Bd. of Regents, 212 F.3d 571, 588 n.15 (11th Cir. 2000)

(“A threatened letter never actually written cannot constitute

an adverse employment action.”). Similarly, Loman’s

drafting of a proposed decision on a possible 30-day

suspension was not materially adverse: The decision was

reassigned to another official, and Loman’s ex parte

communications had no actual effects.

Baloch also alleges that Loman issued a letter of

counseling, letter of reprimand, and unsatisfactory

performance review as retaliation for Baloch’s discrimination

complaints. The letters, however, contained no abusive

language, but rather job-related constructive criticism, which

“can prompt an employee to improve her performance.”

Whittaker, 424 F.3d at 648 (quoting Oest v. Ill. Dep’t of

Corrections, 240 F.3d 605, 613 (7th Cir. 2001)). As for the

“not achieved” performance evaluation, performance reviews

typically constitute adverse actions only when attached to

financial harms. As the Government points out and Baloch

does not deny, Baloch had already achieved the highest step

11

for his grade as a GS-14, step 10 employee. Baloch did not

produce evidence showing that the 2003 negative

performance evaluation could affect his position, grade level,

salary, or promotion opportunities. See Weber v. Battista, 494

F.3d 179, 185-86 (D.C. Cir. 2007) (evaluations were “adverse

actions insofar as they resulted in her losing a financial award

or an award of leave”); see also Brown v. Snow, 440 F.3d

1259, 1265 (11th Cir. 2006) (“A lower score on [the

employee’s] performance evaluation, by itself, is not

actionable . . . unless [the employee] can establish that the

lower score led to a more tangible form of adverse action,

such as ineligibility for promotional opportunities.”);

Whittaker, 424 F.3d at 648 (evaluations and written warnings

were not adverse actions because none had “tangible job

consequences”) (quoting Longstreet v. Ill. Dep’t of

Corrections, 276 F.3d 379, 384 (7th Cir. 2002)).

Finally, Baloch points to Loman’s alleged profanity-

laden yelling as actionable adverse actions. As alleged,

Loman’s outbursts, though usually preceded by some

infraction on Baloch’s part, certainly seem disproportionate.

The Supreme Court, however, has emphasized that sporadic

verbal altercations or disagreements do not qualify as adverse

actions for purposes of retaliation claims: “We speak of

material adversity because we believe it is important to

separate significant from trivial harms. Title VII, we have

said, does not set forth ‘a general civility code for the

American workplace.’” Burlington, 548 U.S. at 68 (emphasis

in original) (quoting Oncale v. Sundowner Offshore Services,

Inc., 523 U.S. 75, 80 (1998)). The altercations in February,

March, August, and October 2003 between Baloch and

Loman did not meet the requisite level of regularity or

12

severity to constitute material adversity for purposes of a

retaliation claim.5

B

Even if the alleged retaliatory measures were materially

adverse actions, the Government asserted legitimate, non-

discriminatory reasons for each act, and Baloch did not

produce sufficient evidence that would discredit those reasons

and show that the actions were retaliatory. See Adeyemi v.

District of Columbia, 525 F.3d 1222, 1226 (D.C. Cir. 2008);

Brady v. Office of Sergeant at Arms, 520 F.3d 490, 494 (D.C.

Cir. 2008); Vickers v. Powell, 493 F.3d 186, 195 (D.C. Cir.

2007); Broderick v. Donaldson, 437 F.3d 1226, 1232 (D.C.

Cir. 2006).

The Government asserted that the disciplinary measures

and comments occurred only after various infractions by

Baloch. The leave restrictions were imposed because Baloch

had taken an anomalous total of 276 hours (seven weeks) of

5

In dismissing Baloch’s retaliation claim, the District Court

also relied on the fact that Baloch continued to file administrative

complaints in August, October, and November 2003, even after the

alleged actions occurred. The District Court explained that Baloch

had not been dissuaded from making charges of discrimination and

that the alleged actions therefore could not have been materially

adverse. See Baloch, 517 F. Supp. 2d at 361 (“The filing of a

complaint after an alleged instance of retaliation militates against a

conclusion that retaliation occurred, as it demonstrates that the filer

was not in fact dissuaded from protecting his rights.”). We disagree

with the District Court’s reasoning on this one point because it

appears that the court focused on Baloch’s subjective reactions

rather than on whether the objective “reasonable worker” would

have been dissuaded from making a discrimination complaint.

Burlington, 548 U.S. at 68.

13

sick leave, which included 18 days before and after holidays

and weekends and numerous eight-hour appointments. The

suspension proposals were based on Baloch’s failure to

comply with leave restrictions. The letter of counseling,

reprimand, and “not achieved” evaluation were justified by

Baloch’s disregard of Loman’s orders for a draft,

unauthorized travel arrangements, late submission of a report,

failure to secure recipient funding, unauthorized cancellation

of a credit card, and emailing of grievances about Loman to a

colleague. The verbal altercations, meanwhile, were similarly

preceded by Baloch’s failure to comply with instructions or

respect Loman’s authority. “[G]ood institutional

administration” justified disciplining Baloch for these

breaches of orders and office etiquette. Mitchell v. Vanderbilt

University, 389 F.3d 177, 182 (6th Cir. 2004).

Baloch fails to offer evidence rebutting the legitimate,

non-discriminatory reasons asserted for the various actions

Baloch complains about. Indeed, Baloch concedes the

infractions that formed the basis for his employer’s responses.

For example, Baloch responds to the alleged sick leave

violations by claiming that he submitted a leave slip that was

misplaced. He does not, however, deny that Loman never

received the slip in question, nor does he deny that he failed

to submit the required certifications on other occasions.

Similarly, Baloch admits to disregarding Loman’s orders for a

draft and merely asserts that in his opinion no meaningful

changes were necessary. Baloch likewise admits that he took

six months to secure funding for a particular client when

Loman had instructed him to act promptly and simply points

to the routine nature of funding delays. Baloch argues that he

had reasons for committing the infractions. But he did not

produce evidence sufficient to show that the Government’s

asserted reasons for the actions (even assuming that each

alleged act was materially adverse) were so ill-justified as to

14

allow a jury to conclude that they were not the actual reasons

and that he suffered retaliation for his discrimination

complaints.

Baloch separately claims that Picard did not suffer the

same disciplinary actions or verbal abuse that he did. But

given the sheer number and willfulness of Baloch’s recurrent

breaches, Picard was not similarly situated and his allegedly

disparate treatment does not give way to an inference of

retaliation against Baloch (or, alternatively, of discrimination

in the imposition of discipline).

IV

We turn finally to Baloch’s hostile work environment

claim. To prevail on such a claim, a plaintiff must show that

his employer subjected him to “discriminatory intimidation,

ridicule, and insult” that is “sufficiently severe or pervasive to

alter the conditions of the victim’s employment and create an

abusive working environment.” Harris v. Forklift Sys., Inc.,

510 U.S. 17, 21 (1993) (quoting Meritor Sav. Bank, FSB v.

Vinson, 477 U.S. 57, 65, 67 (1986)); see also Barbour v.

Browner, 181 F.3d 1342, 1347-48 (D.C. Cir. 1999). To

determine whether a hostile work environment exists, the

court looks to the totality of the circumstances, including the

frequency of the discriminatory conduct, its severity, its

offensiveness, and whether it interferes with an employee’s

work performance. See Faragher v. City of Boca Raton, 524

U.S. 775, 787-88 (1998).

In this case, none of the comments or actions directed at

Baloch expressly focused on his race, religion, age, or

disability – unlike in some hostile work environment cases.

Moreover, the disciplinary actions and workplace conflicts

were not so “severe” or “pervasive” as to have changed the

15

conditions of Baloch’s employment. His claims of harm are

not supported by evidence of tangible workplace

consequences, whether financial, physical, or professional.

His allegations of insult are undercut by the legitimate reasons

and constructive criticism offered in the letters of counseling

and reprimand. His claims of public humiliation do not match

the evidence. And his assertion of pervasive and constant

abuse is undermined by the sporadic nature of the conflicts.

Baloch clearly had several verbal clashes with his supervisor

in the workplace. But the totality of circumstances presented

in this record does not rise to the level necessary to support a

hostile work environment claim.

***

We affirm the judgment of the District Court.

So ordered.