Mlynczak, Bernard v. Bodman, Samuel W.

In the

United States Court of Appeals

For the Seventh Circuit

____________

Nos. 04-3238 & 04-3369

BERNARD MLYNCZAK, THOMAS J.

BALAMUT, JURGIS PALIULIONIS,

and JOHN D. KASPROWICZ,

Plaintiffs-Appellants,

v.

SAMUEL W. BODMAN, Secretary,

U. S. Department of Energy,

Defendant-Appellee.

Appeals from the United States District Court

for the Northern District of Illinois, Eastern Division.

Nos. 97 C 4174 & 97 C 4313—George M. Marovich, Judge.

ARGUED SEPTEMBER 13, 2005—DECIDED APRIL 4, 2006

Before POSNER, RIPPLE, and WOOD, Circuit Judges.

WOOD, Circuit Judge. Argonne National Laboratory, as

its website proclaims, “is one of the U.S. Department

of Energy’s largest research centers.” See

http://www.anl.gov/about.html. Descended from the World

War II Manhattan Project, it now engages in “upwards of

200 research projects, ranging from studies of the atomic

nucleus to global climate change research.” Id. Although

2 Nos. 04-3238 & 04-3369

Argonne is operated by the University of Chicago for the

Department of Energy’s Office of Science, the Department’s

Chicago Operations Office maintains general oversight over

the facility. This case concerns four Department of Energy

(DOE) employees who worked at that office, three of whom

were in the Argonne Group, and one of whom was a physi-

cal scientist and program manager. All four contend that

DOE discriminated against them on the basis of their race

(white) and gender (male), and retaliated against them

when they complained. Three also accused DOE of age

discrimination, but they have dropped that theory on

appeal. The district court granted summary judgment in

favor of DOE. Because the court correctly ruled that the

plaintiffs did not raise genuine issues of fact for either their

discrimination claims, for which Title VII, 42 U.S.C.

§ 2000e, provided the exclusive remedy, or the “adverse

action” part of their retaliation claims, we affirm.

I

All four plaintiffs were essentially middle managers at

DOE’s Chicago Operations Office, employed at the GS-13

level. Plaintiff Bernard Mlynczak was a physical scientist

responsible for overseeing the construction of the Advanced

Photon Source facility at Argonne. Plaintiff Thomas

Balamut worked as a general engineer, managing engineer-

ing construction at the Argonne facility. Plaintiff Jurgis

Paliulionis was also a general engineer; he was charged

with assuring that Argonne followed pertinent DOE policies

and regulations in the course of its projects. Finally,

plaintiff John Kasprowicz was a program manager and

physical scientist; his job involved overseeing technical

tests, writing scope-of-work descriptions, and closing out

contracts.

Nos. 04-3238 & 04-3369 3

A. Alleged Discriminatory Actions

The focal point of each plaintiff’s discrimination com-

plaint was DOE’s decision to fill three GS-14 positions

within the Argonne Group with women—specifically, Eva

Pavia (Hispanic), Roxanne Purucker (white), and Susan

Heston (white). Anibal Taboas, a male Hispanic, headed the

Argonne Group from 1987 to 1995, and it was he who

allegedly selected the three women as a result of intentional

discrimination against white males. We turn, therefore, to

the circumstances of these three decisions, taking the facts

in the light most favorable to the plaintiffs.

1. Affirmative Action Policies

Underlying the plaintiffs’ complaints about all three

specific hiring decisions is a general argument about DOE’s

affirmative action policy. Briefly put, they claim that this

policy permits unlawful reverse discrimination. As plain-

tiffs’ brief puts it, the DOE Affirmative Action and Diversity

Plans and Accomplishment Reports reflected a “sub-culture”

of reverse discrimination that was statistically driven. The

summary judgment record reflects that in the late 1980s, in

compliance with a directive from the Equal Employment

Opportunity Commission that required all federal agencies

to adopt an affirmative action plan, the Chicago DOE office

prepared such a plan. The plan set forth the office’s goals

for providing employment opportunities for women and

minorities. About ten years later, the office created a more

comprehensive document entitled “Workforce 21,” which

had goals similar to those in the affirmative action policy.

The focus of the affirmative action plans was on ensuring

diversity in the applicant pool for positions at the agency.

Thus, while they stress active recruitment of women and

minority candidates, they do not contain quotas, nor do they

authorize management to give preference to less-qualified

female or minority applicants for jobs or promotions.

4 Nos. 04-3238 & 04-3369

Instead, the Chicago DOE office is bound by the rules in the

DOE Merit Promotion Policy, under which selecting officials

may not make a hiring or promotion decision based on race,

color, sex, national origin, age, or disability. Race or sex

may be considered only in the unlikely event that two

candidates are so equally qualified that there is no other

meaningful distinction between them. That said, the

success of managers at the Chicago office in achieving

Equal Employment Office (EEO) goals and objectives was

one of twelve factors taken into account in their perfor-

mance evaluations. “Success” was not limited to hiring or

promotion decisions; it included a wide variety of career

development measures, including recruiting at minority

colleges, developing day-care facilities, or attending a career

fair directed toward women.

Taboas’s scores on this element for the years 1989 to 1993

ranged from “meeting” those objectives to “far exceeding”

them. His evaluations reveal that, during that time period,

26 of the 29 promotions and 22 of 31 new hires were

awarded to women or minorities. The record does not

reveal, however, any detail about what those positions

were, who applied, or the qualifications of the applicants.

Plaintiffs point out that Taboas admitted that he takes an

individual’s race, sex, or minority status into consideration,

and if he does not see adequate diversity in a job category,

he will “look hard” for diversity in the list of qualified

applicants. It is against the background of this policy that

the three contested employment decisions took place.

2. Pavia Hiring

In 1994, a GS-14 Environmental Scientist/Engineer

position opened up within the Argonne Group. In prepara-

tion for filling the position, supervisor Richard Baker

prepared a position description and forwarded it to Eliza-

beth Lyon, a personnel specialist in the office’s human

resources department. The HR department had a choice of

Nos. 04-3238 & 04-3369 5

filling the position through a noncompetitive process, under

which it would look only to current federal employees, or a

competitive process, under which it would open the job to

all United States citizens. Taboas decided to use the latter

process, because he wanted to bring in someone from the

outside. Lyon opted for a variant of the competitive process

in which DOE could obtain authority from the federal Office

of Personnel Management (OPM) to perform the recruit-

ment itself. Although the noncompetitive process was

generally used in Chicago, it was not unusual to use the

competitive process.

Normally, once the Chicago office receives OPM’s authori-

zation, it advertises the vacancy externally and posts it on

an internal DOE bulletin board. Vacancy announcements

ordinarily remain open for 21 days. In fact, the particular

Environmental Scientist/Engineer position at issue had

come open some months earlier and had been offered to a

white male in another DOE office, but he had declined the

offer. As a result, DOE had to begin all over again. Once

Lyon began working on it, she accelerated the process,

leaving the announcement open for only nine days. She did

so because OPM had delayed in giving DOE authority to fill

the job, and she was anxious to find someone because she

had heard rumors that there would be a hiring freeze.

The plaintiffs testified that Lyon cut corners and failed to

post the position internally; Lyon could not say whether she

had done so or not, and so we assume that she did not. In

any case, the plaintiffs had access to the external advertise-

ment for the position, but they never saw it, and so none of

them applied.

Six people did submit applications for this position: Pavia

and five others. (Rick Slagle, Lyon’s supervisor, stated that

he believed that there would have been eight to 10 applica-

tions if the position had been posted internally as well.)

Lyon scored the applicants and prepared a selection

6 Nos. 04-3238 & 04-3369

certificate for further review. Although Baker normally

would have been responsible for that review, he was on

vacation, and so the certificate went directly to Taboas,

Baker’s boss. Taboas selected Pavia, whom he had met

earlier during a business meeting, for the job. Her qualifica-

tions included a law degree, a bachelor of science degree in

health physics, and almost nine years of work experience

with nuclear and hazardous waste management. Taboas

testified that the latter experience was his primary reason

for selecting her, given the fact that the environmental

scientist position involved project management responsibili-

ties with a significant emphasis on hazardous waste

disposal. He also testified that Pavia was the most qualified

applicant, in his estimation, and that her qualifications far

exceeded those required for the position.

3. Purucker Promotion

The second allegedly discriminatory action involved a

promotion to a GS-14 position for a safety programs branch

manager within the Argonne Group. That position became

available in July 1994. Mlynczak applied for it and made it

to the short list of candidates, but in the end Taboas

selected Roxanne Purucker, without holding interviews. He

concluded that Purucker had superior qualifications for the

job, because she had the necessary background in industrial

safety and hygiene (indeed, she was a certified industrial

hygienist), hazardous waste management, and management

of a sophisticated contractor staff. Mlynczak believes that

his qualifications were equal to or better than Purucker’s

and that she was promoted solely because she is a woman.

He held a bachelor of arts degree in biology and an MBA,

and had received a number of excellence awards for his

work.

Nos. 04-3238 & 04-3369 7

4. Heston Appointment

Finally, in October 1994 a position at the Advanced

Photon Source (APS) facility at the GS-14 level became

available. Robert Wunderlich, a white male who reported to

Taboas, appointed Susan Heston to that position, with

Taboas’s approval. This amounted to a lateral transfer for

Heston, who was already working at the GS-14 level

elsewhere in the office. Wunderlich did not advertise the

position, both because he too was concerned about the

anticipated hiring freeze and because he wanted to main-

tain control over the selection. He had worked with Heston

before, and had a favorable impression of her, and he also

counted as a plus the fact that she was already at the GS-14

level and could easily make the lateral move. Mlynczak was

interested in this position, but he was forestalled from

applying for it because it was never posted. He asserts

(without citation to the record) in his brief that Heston was

being bumped out of a job that she was unable to perform.

Once again, he claims that his qualifications far exceeded

Heston’s, as he had been performing the duties called for in

the job and Heston had no experience in accelerator facili-

ties such as the APS. He also asserts, again without a

proper reference to the record, that when he asked why he

was not selected for this promotion, he was told that “the

Secretary of DOE was not awarding any supervisory

positions to white males. . . .” After Heston was selected,

Wunderlich commented to Mlynczak that he had been

“screwed.”

B. Alleged Retaliation

In July 1995, Mlynczak filed complaints with the EEO

against Taboas and Wunderlich, claiming that they had

discriminated against him in the Pavia, Purucker, and

Heston selections. Balamut, Kasprowicz, and Paliulionis

also filed EEO complaints with respect to Pavia’s hiring.

8 Nos. 04-3238 & 04-3369

After these complaints were lodged, all four plaintiffs

claimed that individuals in the Chicago office retaliated

against them in various ways. For example, in August 1995,

Balamut sent a letter to Richard Gallegos, the Director of

the Office of Civil Rights and Equal Employment Opportu-

nity at DOE’s Western Area Power Administration, express-

ing his fear that Taboas would engage in violent reprisals

because of the EEO complaints. During the same month,

Balamut participated in a conference call with a former

director of security for DOE, Edward McCallum, who told

Balamut that Taboas had committed various security

breaches during McCallum’s tenure, including improper use

of a firearm.

Gallegos forwarded a copy of Balamut’s letter to Cherri

Langenfeld, the manager of the Chicago office; Langenfeld

in turn first met with the director of security, and later

provided Taboas with a copy of the letter that identified

Balamut as the author. A couple of days later, Balamut sent

Langenfeld a letter asking that she keep the Gallegos

correspondence confidential and not disclose it to Taboas,

but this was obviously too late.

In the end, not much came of this letter aside from a

petition that was circulated urging the employees to

support Taboas and various acts by which co-workers

ostracized Balamut and called him unflattering names

(such as “cockroach”). He also claims that his performance

ratings have deteriorated, cooperation at the workplace has

diminished, and he lost bonus opportunities until he was

transferred to a different position. Later, in 1996, Taboas

sued Balamut for defamation and other state-law claims. A

DOE official told Kasprowicz that Taboas would drop the

suit if all EEO matters were also dropped.

II

On the basis of this record, the district court granted

summary judgment for DOE. Because our review of that

Nos. 04-3238 & 04-3369 9

decision is de novo, we proceed immediately to the argu-

ments plaintiffs have made on appeal. Rather than struc-

turing the discussion plaintiff-by-plaintiff, we look instead

at the four alleged grounds for relief: discrimination with

respect to the three different promotion decisions and

retaliation.

All four plaintiffs have based their claims on Title VII,

§ 717, of the Civil Rights Act of 1964, 42 U.S.C. § 2000e,

which prohibits discrimination based on race, color, reli-

gion, sex, and national origin in federal employment. See 42

U.S.C. § 2000e-16. Although Mlynczak asserts that he is

also entitled to assert a claim directly under constitutional

equal protection principles based on the due process clause

of the Fifth Amendment, see Bolling v. Sharpe, 347 U.S.

497 (1954), the district court held that this avenue was

foreclosed by the Supreme Court’s decision in Brown v.

General Services Administration, 425 U.S. 820 (1976). The

district court was correct: Brown squarely holds that § 717

“provides the exclusive judicial remedy for claims of

discrimination in federal employment.” 425 U.S. at 835.

Nothing in the Supreme Court’s later opinion in Adarand

Constructors, Inc. v. Pena, 515 U.S. 200 (1995), which does

not even cite Brown and which concerned the equal protec-

tion rights of private federal contractors, changed that rule.

Although claims brought by federal employees are subject

to slightly different procedural prerequisites, which appar-

ently were satisfied in these cases (or, as non-jurisdictional

points, the government has now forfeited), the substance of

the federal employee’s right in § 717 is the same as the

more familiar rights assured to all other employees, found

in § 42 U.S.C. § 2000e-2(a)(1). The rights there assured

apply to men as well as women, see Oncale v. Sundowner

Offshore Servs., Inc., 523 U.S. 75 (1998), and to whites as

well as members of various minority groups, see McDonald

v. Santa Fe Trail Transp. Co., 427 U.S. 273, 278-79 (1976).

10 Nos. 04-3238 & 04-3369

As we noted in Gore v. Indiana University, 416 F.3d 590

(7th Cir. 2005), however, conventional analysis

is not very helpful for so-called reverse-discrimination

claims. Because it is the unusual employer who discrim-

inates against majority employees, a male plaintiff

alleging gender discrimination must show something

more than the fact that he is gendered. . . . Rather, the

plaintiff in such cases must show background circum-

stances that demonstrate that a particular employer

has reason or inclination to discriminate invidiously

against whites [or men] or evidence that there is

something “fishy” about the facts at hand.

Id. at 592 (internal quotations and citations omitted).

The plaintiffs recognize this burden, at least implicitly,

and attempt to meet it through their reliance on the DOE

affirmative action policy and the incentives the agency gives

to managers to enhance the diversity of the workforce.

Otherwise, our analysis follows the well-established path

for any discrimination claim. Here, however, rather than

belabor the question whether the plaintiffs are proceeding

under the so-called “direct” method of proving discrimina-

tion, which includes the possibility of showing discrimina-

tion by circumstantial evidence, see Rudin v. Lincoln Land

Cmty. Coll., 420 F.3d 712, 720 (7th Cir. 2005); Troupe v.

May Dep’t. Stores Co., 20 F.3d 734 (7th Cir. 1994), or the

“indirect” method launched by McDonnell Douglas Corp. v.

Green, 411 U.S. 792 (1973), we have examined the record

from both perspectives simultaneously.

We are unpersuaded that any of the so-called direct

(meaning circumstantial) evidence of discriminatory intent

was enough to save the plaintiffs’ cases. Langenfeld, for

example, made a number of comments indicating that she

was happy that women were being hired, that she would

favor a minority candidate over a nonminority candidate,

and that it was good for white men to experience a little

Nos. 04-3238 & 04-3369 11

discrimination. These comments may reflect small-minded-

ness on her part, but they fall short of showing that the

Chicago office discriminated against these plaintiffs.

Langenfeld was not one of the decisionmakers for any of the

employment decisions at issue here. See, e.g., Crabtree v.

Nat’l Steel Corp., 261 F.3d 715, 723 (7th Cir. 2001) (“Stray

remarks made by nondecisionmakers are not evidence that

the decision had a discriminatory motive.”). Although

Taboas was a decisionmaker and the evidence showed that

he was philosophically favorable to the hiring of minorities,

that does not prove that any particular decision he made

was for discriminatory reasons. Wunderlich’s comment to

Mlynczak that he had been “screwed” over the Heston

decision is similarly insufficient. Wunderlich did not refer

to Mlynczak’s race or gender in making this statement, so

the comment could just as easily have been an expression

of sympathy, or a reflection that it was tough to lose out to

an equally qualified competitor. Mlynczak’s belief that

Wunderlich was implicitly complaining about the affirma-

tive action policy when he uttered the remark is too conjec-

tural to serve as evidence of race or gender discrimination.

As we have noted before, “if the subjective beliefs of plain-

tiffs in employment discrimination cases could, by them-

selves, create genuine issues of material fact, then virtually

all defense motions for summary judgment in such cases

would be doomed.” Mills v. First Fed. Sav. & Loan Ass’n of

Belvidere, 83 F.3d 833, 841-42 (7th Cir. 1996) (quoting

Visser v. Packer Eng’g Assocs., 924 F.2d 655, 659 (7th

Cir. 1996)). Our evaluation will therefore focus first on the

question whether the plaintiffs put before the district court

evidence that, if believed, would permit a trier of fact to

conclude that any one of them (or more) failed to obtain a

position because of unlawful racial discrimination. We then

address the retaliation claims.

12 Nos. 04-3238 & 04-3369

A. Pavia

None of the four plaintiffs applied for the position that

was eventually awarded to Pavia, because Taboas and Lyon

chose to use the “competitive process” and failed to post the

opening on the Chicago office’s internal bulletin board. The

plaintiffs’ real complaint is therefore about the loss of an

opportunity to apply for the job, rather than the failure of

any one of them to succeed in winning it. The plaintiffs

argue that the evidence, viewed favorably to them, shows

that the real reason why Taboas and Lyon used the “com-

petitive process” was as a means of discriminating against

white men. It is almost impossible to follow the citations in

their brief that allegedly support this allegation, however,

as those citations for the most part seem to refer to para-

graphs in various pleadings. In order to avoid summary

judgment, of course, they were required to point to eviden-

tiary material—documents, depositions, affidavits, and the

like—that could support their position.

The existence of DOE’s affirmative action policy alone is

not enough to permit a trier of fact to attribute this type of

illegal manipulation to the decisionmakers. First, the

simple fact that such a policy exists does not prove that

intentional discrimination is the reason why a particular

individual was not hired or promoted. See Whalen v. Rubin,

91 F.3d 1041, 1045 (7th Cir. 1996). The aggrieved person

must establish a link between the policy and the employ-

ment decision about which he or she is complaining. See id.

Second, the DOE policies here were of the type that expand

the pool of persons under consideration, which is permitted,

see Duffy v. Wolle, 123 F.3d 1026, 1038-39 (8th Cir. 1997),

as long as it is not followed by an explicit policy of prefer-

ring the minority candidates in the group, see Rudin, 420

F.3d at 721-22. The DOE policies, as we noted earlier, were

explicit in the opposite direction: once the pool was created,

managers were enjoined not to base their hiring or promo-

tion decisions on a forbidden characteristic. To the extent

Nos. 04-3238 & 04-3369 13

that managers like Taboas were rewarded for improving

workplace diversity, plaintiffs have introduced nothing

refuting the government’s evidence that a wide variety of

measures were covered, including such innocuous steps as

establishing day-care facilities (which presumably help all

working parents, not just mothers).

We see nothing inherently discriminatory about a decision

to use an open, nationwide, competitive application process

as opposed to one restricted to internal candidates. The

facts that the application period was shorter than usual and

that Taboas made the decision rather than the vacationing

Baker do not support a finding of discrimination against

these plaintiffs, or white men in general, as these factors

equally affected minority and women internal candidates.

Plaintiffs do not discuss how Pavia compared with the other

five applicants whose resumes were before Lyon and

Taboas, with respect to either their relative qualifications

for the position or race and gender, therefore it is impossi-

ble for us to conclude that Taboas favored her because he

had already met her once (a nondiscriminatory reason in

any event) or because she was female and Hispanic. In

these circumstances, we consider the qualifications the

various plaintiffs had for this position (and how they

compared to Pavia’s) to be beside the point. Discrimination

against incumbent employees is not one of the grounds

covered by § 717, and we see no other way that a rational

trier of fact could find that discrimination explained the

decision to use the open competitive process, even though

one result of that decision was the failure of any of these

plaintiffs to secure the open position.

B. Purucker

Mlynczak’s argument in support of his claim relating to

Purucker’s promotion is so abbreviated that we are tempted

14 Nos. 04-3238 & 04-3369

to say it is waived. The sum total of the discussion in the

opening brief of appellants is as follows:

Mlynczak’s other discrimination claim relates to the

promotion of Roxanne Purucker a white female to the

GS-14 position of Safety programs Branch Manger [sic]

in the mid-1990’s. Mlynczak asserts, and DOE denies,

that his qualifications were at least equal to if not

better than Purucker’s and that she was promoted only

because she is a woman. DOE disputes Mlynczak’s

qualifications and denies that Purucker was promoted

on any basis but merit. [Appellants’ Brief at 20.]

* * *

The facts pertaining to the additional Mlynczak

discrimination claims are different than those asserted

for Pavia but the law and citations to authority are the

same. Mlynczak argues the facts without repeating the

citations to authority. [Appellants’ Brief at 34.]

The second passage cited is followed by general assertions

that Taboas and Langenfeld went out of their way to

discriminate against white males, and that Mlynczak was

well qualified for all of the positions in question.

If, generously construed, this is an argument that a trier

of fact could find that Purucker was not as qualified for that

position as Mlynczak, and thus that discrimination was the

explanation for the choice, we finding it wanting. In

Millbrook v. IBP, Inc., 280 F.3d 1169 (7th Cir. 2002), this

court addressed “comparative qualifications” arguments in

detail. Id. at 1177-83. We held there that

where an employer’s proffered non-discriminatory

reason for its employment decision is that it selected

the most qualified candidate, evidence of the applicants’

competing qualifications does not constitute evidence of

pretext unless those differences are so favorable to the

plaintiff that there can be no dispute among reasonable

Nos. 04-3238 & 04-3369 15

persons of impartial judgment that the plaintiff was

clearly better qualified for the position at issue.

Id. at 1180 (internal quotations omitted). Only this rule, we

concluded, would ensure that the role of the court did not

degenerate into the inappropriate one of “super personnel

department.” Id. at 1181.

We see nothing in Ash v. Tyson Foods, Inc., 126 S.Ct.

1195 (2006), that requires reconsideration of Millbrook’s

approach to qualifications evidence. In that decision, the

Court reiterated that “qualifications evidence may suffice,

at least in some circumstances, to show pretext.” Id. at

1197. The Court of Appeals for the Eleventh Circuit had

colorfully described those circumstances as existing “only

when the disparity in qualifications is so apparent as

virtually to jump off the page and slap you in the face.” Id.

(internal quotations omitted). The Court disapproved that

particular formulation, calling it “unhelpful and imprecise

as an elaboration of the standard for inferring pretext from

superior qualifications.” Id. Although the Court expressly

refused to provide an authoritative standard, id. at 1198, it

did set forth with apparent approval other articulations of

the standard, which require the plaintiff to show that her

qualifications are “clearly superior,” or that she is “signifi-

cantly better qualified” for the job, or that “no reasonable

person, in the exercise of impartial judgment, could have

chosen the candidate selected over the plaintiff for the job

in question.” Id. at 1197-98. Our Millbrook standard is

essentially the same as the last of these, and thus, as we

read Ash, is consistent with the law.

Even in light of Ash, therefore, we conclude that

Mlynczak’s evidence of comparative qualifications was

insufficient. Finally, for the reasons we have already given,

adding the affirmative action policy that DOE had in place

to the picture is not enough to create an issue of fact where

none existed before.

16 Nos. 04-3238 & 04-3369

C. Heston

Mlynczak’s discussion of the Heston position is almost as

skimpy. We have already explained why Wunderlich’s

comment, after Heston was selected, that Mlynczak had

been “screwed” is not enough to put him over the summary

judgment hurdle. The fact that the deputy project manager,

Robert Thompson, thought that Mlynczak was better

qualified than Heston, while better evidence than anything

Mlynczak had for the Purucker appointment, still falls

short under Millbrook, particularly because Thompson was

not the decisionmaker. DOE offered nondiscriminatory

reasons for its decision to transfer Heston laterally within

the agency, from one GS-14 position to another, and to

move quickly in light of an impending hiring freeze.

Mlynczak speculated that the true reason behind Heston’s

move was her inadequate performance in her old job, but he

offers no competent evidence to show that. He points to

some evidence showing that, once in the new job, Heston

was “mediocre” and spent most of her time “studying and

traveling in pursuit of a DOE sponsored degree.” This after-

the-fact account (assuming for the sake of argument that

Mlynczak’s evidence competently showed that she was

performing badly) does not show, however, that DOE did

not genuinely believe its reasons for moving her when it

did.

D. Retaliation

With respect to this part of the case, we have little to add

to the district court’s analysis. That court correctly acknowl-

edged that Title VII prohibits, among other things, an

employer from discriminating “against any of [its] employ-

ees . . . because [they have] made a charge, testified,

assisted, or participated in any manner in an investigation,

proceeding, or hearing under this subchapter.” 42 U.S.C.

§ 2000e-3(a). In order to go forward with their case, the

Nos. 04-3238 & 04-3369 17

plaintiff has two options: first, more directly, he may show

that (1) he engaged in protected activity and (2) suffered the

adverse action in question; or second, he may show that (1)

he engaged in the protected activity, (2) afterwards only he,

and not any similarly situated employee who did not file a

charge [or otherwise engage in protected activity] was

subjected to an adverse action, even though (3) he was

performing the job satisfactorily. Stone v. City of Indianapo-

lis Public Utils. Div., 281 F.3d 640, 644 (7th Cir. 2002). It is

uncontested that the plaintiffs all engaged in protected

activities. We therefore focus on whether they suffered any

actionable adverse action.

Retaliation plaintiffs normally complain about adverse

actions related to their employment—in shorthand, adverse

employment actions—and this case is no exception. Not

every workplace slight is actionable, however. We have

often noted that “mere unhappiness and inconvenience are

not actionable under Title VII.” See Haywood v. Lucent

Techs., Inc., 323 F.3d 524, 532 (7th Cir. 2003) (quoting

Smart v. Ball State Univ., 89 F.3d 437, 441 (7th Cir. 1996)).

However embarrassing it may have been to Balamut for the

letter he wrote to Gallegos to fall into Taboas’s hands, and

however apprehensive the plaintiffs may have been about

an intemperate reaction from Taboas, the fact is that

nothing ever happened apart from his filing the defamation

lawsuit a year later. The lawsuit—at least in the absence of

a showing not made here that it was independently an

abuse of process—was not the kind of adverse action that

the retaliation statute reaches. Similarly, Kasprowicz’s

recollection of an incident two years after Taboas saw the

letter in which Taboas stared at both him and Mlynczak

does not qualify as an adverse action related to employ-

ment. The fact that co-workers may have shunned them is

also insufficient. See Griffin v. Potter, 356 F.3d 824, 830

(7th Cir. 2004) (“General hostility and comments do not

qualify as actionable adverse employment actions unless

18 Nos. 04-3238 & 04-3369

the hostility was severe and pervasive.”). Finally, with

respect to Balamut’s claim that his performance ratings

declined after Taboas received the letter, in Haywood we

rejected the idea that negative performance appraisals

alone could qualify as an adverse employment action. 323

F.3d at 532.

III

In closing, we emphasize the fact that our review of these

events, like the district court’s, is necessarily limited to the

record that the parties put before us. Our de novo review of

that record satisfies us that the district court correctly

granted summary judgment in favor of the defendant

Department of Energy. We therefore AFFIRM the judgment

of that court.

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—4-4-06