Wayne Bridgeforth v. Sally Jewell , 721 F.3d 661 ( 2013 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 15, 2013 Decided July 2, 2013
No. 12-5015
WAYNE L. BRIDGEFORTH,
APPELLANT
v.
SALLY JEWELL, SECRETARY, U.S. DEPARTMENT OF THE
INTERIOR,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:10-cv-00080)
Kyle G. Ingram, pro hac vice, argued the cause for
appellant. On the briefs was Morris E. Fischer.
Michelle Lo, Assistant U.S. Attorney, argued the cause for
appellee. With her on the brief were Ronald C. Machen, Jr.,
U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attorney.
Before: HENDERSON, BROWN, and GRIFFITH, Circuit Judges.
Opinion for the Court filed by Circuit Judge GRIFFITH.
Concurring opinion filed by Circuit Judge HENDERSON.
2
GRIFFITH, Circuit Judge: Wayne Bridgeforth appeals the
district court’s grant of summary judgment against him on his
claim that workplace supervisors unlawfully denied him time-off
awards in retaliation for his pursuit of a protected activity. For
the reasons set forth below, we affirm the district court.
I
Bridgeforth has been a police officer with the United States
Park Service, an agency within the Department of the Interior,
since 2002. In 2004, he filed an employment discrimination
claim, which settled in May 2007. According to Bridgeforth,
once the suit settled, his supervisors retaliated by failing to
nominate him for time-off awards (i.e., paid leave) on five
occasions over the next three months.
Bridgeforth’s retaliation claim is part of a suit that alleged
workplace discrimination under Title VII of the Civil Rights Act
of 1964, as amended, 42 U.S.C. § 2000e, et seq. The district
court granted summary judgment to the Department of the
Interior on all Bridgeforth’s claims, Bridgeforth v. Salazar, 831
F. Supp. 2d 132, 136 (D.D.C. 2011), and he appealed. On June
15, 2012, a special panel of this court granted the department’s
motion for summary affirmance on all but the retaliation claim,
Bridgeforth v. Salazar, No. 12-5015, 2012 WL 2371601 (D.C.
Cir. June 15, 2012), which was assigned to this panel for oral
argument. We exercise our jurisdiction pursuant to 28 U.S.C.
§ 1291 and review the district court’s grant of summary
judgment de novo. Salazar v. Washington Metro. Area Transit
Auth., 401 F.3d 504, 507 (D.C. Cir. 2005).
3
II
During his time with the Park Service, Bridgeforth alleges
that he received seven time-off awards: one in 2003, four in
2005, and two in 2006. Bridgeforth argues that five acts he
performed in the three months following the May 2007
settlement of his discrimination claims merited time-off awards
as well.
• On June 20, Bridgeforth arrested and helped identify a
suspect who had assaulted an intoxicated victim.
• On July 20, he volunteered to patrol a local park in
plain clothes and, with the assistance of other officers,
investigated and arrested two suspects for possession
of cocaine and marijuana.
• On August 17, Bridgeforth joined agents of the United
States Secret Service in forming a human chain to pull
a person out of an overturned car.
• On August 18, he arrested boaters in Washington
Harbor “based on his knowledge of Washington
trespass law” and prevented other officers from
making unlawful arrests.
• On August 24, Bridgeforth assisted in a vehicle pursuit
and the subsequent arrest and investigation.
Neither Bridgefoth nor any of the other Park Service officers
involved was nominated for a time-off award, or any other form
of recognition, for their roles in any of these incidents.
4
The dry spell soon ended. On September 6, 2007, the Park
Service awarded Bridgeforth a written commendation for his
work in recovering a stolen vehicle. On October 2, 2007, the
Park Service again awarded him a written commendation, this
time for assisting in the recovery of illegal weapons and drugs.
III
To sustain a prima facie case of unlawful retaliation,
Bridgeforth must show that the Park Service took materially
adverse action against him because he participated in protected
activity. See McGrath v. Clinton, 666 F.3d 1377, 1380 (D.C.
Cir. 2012) (“To prove unlawful retaliation, a plaintiff must
show: (1) that he opposed a practice made unlawful by Title VII;
(2) that the employer took a materially adverse action against
him; and (3) that the employer took the action ‘because’ the
employee opposed the practice.”).
To be materially adverse, the employer’s action must be
more than “those petty slights or minor annoyances that often
take place at work and that all employees experience.”
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68
(2006). Stated another way, “not everything that makes an
employee unhappy is an actionable adverse action. Minor and
even trivial employment actions that an irritable, chip-on-the-
shoulder employee did not like would otherwise form the basis
of a discrimination suit.” Russell v. Principi, 257 F.3d 815, 818
(D.C. Cir. 2001) (quoting Smart v. Ball State Univ., 89 F.3d 437,
441 (7th Cir. 1996)) (internal quotation marks omitted).
Materially adverse action would “dissuade[] a reasonable worker
from making or supporting a charge of discrimination.”
Burlington N., 548 U.S. at 68 (quoting Rochon v. Gonzales, 438
F.3d 1211, 1219 (D.C. Cir. 2006)). Typically, a materially
adverse action in the workplace involves “a significant change in
employment status, such as hiring, firing, failing to promote,
5
reassignment with significantly different responsibilities, or a
decision causing 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)). Such actions
demonstrate an “objectively tangible harm.” See Forkkio v.
Powell, 306 F.3d 1127, 1131 (D.C. Cir. 2002).
Failure to nominate for time-off awards does not qualify as
the type of objective, tangible harm akin to “firing” or “a
significant change in benefits” that is obviously materially
adverse. ∗ Of course, not all actionable harms are obvious, and a
plaintiff alleging retaliation may rely on more subtle actions to
make his case. For such alleged harms to be materially adverse,
however, they must not be “unduly speculative.” Douglas v.
Donovan, 559 F.3d 549, 553 (D.C. Cir. 2009). We have
addressed this fact pattern before, in Douglas v. Donovan. Id.In Douglas, we held that an employer’s failure to nominate
an employee for a Presidential Rank Award did not constitute
materially adverse action because the award process was fraught
with “inherent uncertainty.” Id. We noted that the plaintiff could
not show a “direct tie between a nomination and an award.” Id.∗
This retaliation claim alleges materially adverse action that is
workplace-related. A retaliation claim need not be confined to
workplace action, so long as “a reasonable employee would have found
the challenged action materially adverse.” Burlington N., 548 U.S. at
68. This distinguishes discrimination, which affects the “terms and
conditions of employment,” id. at 64, from retaliation, which
“encompass[es] a broader sweep of actions.” See Baloch v.
Kempthorne, 550 F.3d 1191, 1198 n.4 (D.C. Cir. 2008). As the Court
stated in Burlington Northern, “Title VII’s substantive provision and
its antiretaliation provision are not coterminous. The scope of the
antiretaliation provision extends beyond workplace-related or
employment-related retaliatory acts and harm.” 548 U.S. at 67.
6
Douglas could not demonstrate that if he had been nominated for
the award, he would have received it. The criteria for receipt of
an award were exacting, and its grant was discretionary and
involved many levels of approval. “The Presidential Rank
Award process is labyrinthine, with numerous ways to fail, but
only one to succeed.” Id. at 551. Even if Douglas had been
nominated, we found that there were too many intervening
factors in the selection process to render his receipt of the award
likely. This distinguished Douglas from Weber v. Battista, 494
F.3d 179 (D.C. Cir. 2007), on which Bridgeforth chiefly relies.
In Weber, we held that lowering an employee’s performance
evaluation could be materially adverse action if the lowered
score resulted in the employee not receiving a cash award. The
employee in Weber demonstrated that she had received the
“optional” cash award in each of the preceding three years. Id. at
185. The link between performance evaluation and award was so
direct that the alleged harm was not speculative, and her claim
survived summary judgment. As we stated, “though
performance awards are indeed optional with the employer, the
record shows [her employer] had opted to give Weber an award
in each of the three years preceding 1998, the year in which she
complained of discrimination and received no such award.” Id.Weber had demonstrated that she had received similar positive
performance evaluations, and similar cash awards, with a
predictable regularity that ceased after she complained of
discrimination. Because she could produce evidence of a pattern
of receiving such awards that ceased when she engaged in
protected activity, the harm she alleged was not speculative.
But this case is more like Douglas, because the harm
Bridgeforth has alleged is too speculative to constitute materially
adverse action. The path from Bridgeforth’s alleged acts of
bravery to a time-off award is, as in Douglas, a labyrinth, with
many ways to fail but only one way to succeed. We begin with
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the highly subjective standards for a time-off award. According
to the Department of the Interior Memorandum regarding
“awards and Recognition Program[s],” the following are
“examples of . . . criteria” for the award:
[m]aking a high quality contribution involving a difficult or
important project or assignment; [d]isplaying special
initative . . . ; [e]nsuring the mission . . . is accomplished
during a difficult period . . . ; [u]sing initiative and
creativity in making improvements in a product, activity
program, or service; [p]roviding exceptional service . . . ;
[d]eveloping new procedures or guidelines that improve the
quality of services provided . . . ; [o]ther comparable
employee achievements.
J.A. 121-22. What’s more, these vague measures must be passed
upon by a supervisor, reviewed by a captain, and, depending on
the amount of time-off at issue, approved by the Chief of Police.
This is a far cry from the award that Weber could rightly claim
based on achievement of an objective measure. The subjective
nature of the award criteria makes it hard for us to imagine that
the mere failure to nominate would be governed by Weber.
Bridgeforth’s claim is especially weak, because he has
failed to produce any evidence that would establish a direct and
non-speculative connection between action, nomination, and
award. Although he received seven time-off awards over a three-
year period preceding the summer of 2007, he tells us nothing
about them that would cast suspicion upon why he was not
nominated for such an award during the three months following
the settlement of his claims. He has provided no evidence of
how frequently or consistently he was nominated or the rate at
which nomination led to receipt of the award. Nor has he shown
that such nominations (or awards) occurred with a predictable
regularity that ceased for three months in the summer of 2007,
8
but then resumed afterwards. Bridgeforth makes no effort to
explain why the past history of scattered awards even raises an
inference that he was entitled to more during this brief period in
the summer of 2007. Finally, that no other Park Service officer
was commended for any of the acts Bridgeforth argues merited
his nomination for a time-off award undermines his claim.
Bridgeforth argues that the district court erred by finding in
Douglas a categorical rule that an employer’s failure to
nominate an employee for a time-off award could never be
unlawful. If that is what the district court did, it erred, because
we found no such rule in Douglas. But we need no such rule to
affirm the district court’s judgment. As Burlington Northern
admonishes, in retaliation claims, “[c]ontext matters.”
Burlington N., 548 U.S. at 69. The context here refutes
Bridgeforth’s claim that the failure to nominate him for a time-
off award was an adverse action.
Bridgeforth’s allegation that his employer’s failure to
nominate him for a time-off award constituted materially
adverse action falls between Douglas and Weber, but it is much
closer to Douglas. On different facts, Bridgeforth might have
shown that he suffered adverse action by producing evidence
that he always received nominations for certain types of work, or
that he received such nominations with a predictable regularity,
as did the plaintiff in Weber, and that upon being nominated, he
always received a time-off award. But Bridgeforth has produced
no such evidence. He has not shown that his nominations for
time-off awards occurred predictably. On the contrary, he offers
a scattered and incomplete award history. He also has not shown
that each time he received a nomination, he received the time-off
award. Again, the evidence demonstrates that approval for such
awards required several supervisors to exercise their discretion
in the same way. Thus, while Bridgeforth’s receipt of a time-off
award may be less speculative than Douglas’s receipt of a
9
Presidential Rank Award, Bridgeforth still has not shown the
entitlement to an award that we require. As such, he cannot
demonstrate that the failure of his employer to nominate him for
time-off awards materially affected the terms of his employment.
We note the limited nature of our holding. There is no
categorical rule preventing a plaintiff from demonstrating
materially adverse action simply because there is no direct
correlation between nomination for an award and receipt of a
tangible benefit.
IV
For the foregoing reasons, we affirm the order of the district
court granting summary judgment against Bridgeforth on his
retaliation claim.
So ordered.
KAREN LECRAFT HENDERSON, Circuit Judge, concurring:
I agree with the majority opinion that the district court
correctly granted summary judgment to the government because
appellant Wayne Bridgeforth’s retaliation claim is, at best,
speculative. I write separately, however, because I disagree with
the majority’s suggestion that the case is close because it “falls
between” Douglas v. Donovan, 559 F.3d 549 (2009), and Weber
v. Batista, 494 F.3d 179 (D.C. Cir. 2007). Maj. Op. at 8. The
failure to nominate Bridgeforth for time-off awards was no more
an adverse employment action than was the employee’s failure
to make the cut for a Presidential Rank Award in Douglas. Like
the “indefinable star qualities” of “outstanding leadership and
innovation” that Douglas’s award was intended to reward—the
criterion for U.S. Park Police time-off awards —“personal effort
that contributes to the quality, efficiency, or economy of
Government operations”— is “by [its] very nature subjective.”
Douglas, 559 F.3d at 553; JA 119. In Donovan, we made clear
that the decision whether to nominate an employee for such a
subjective award does not by itself constitute the sort of
“adverse employment action” necessary to make out a
discrimination or retaliation claim. “[T]he inherent uncertainty
in the [award] process means there can be no direct tie between
a nomination and an award.” 559 F.3d at 553. Accordingly, an
employee “must go the further step of demonstrating how the
decision . . . caused such an objectively tangible harm.”
Douglas, 559 F.3d at 553. In Weber, the plaintiff did just that,
producing evidence that her lower performance ratings after she
complained of discrimination caused her to lose a performance
award that was based on those ratings. Like the Douglas
plaintiff, however, Bridgeforth offered no evidence of the
necessary causal link and his claim should therefore be
easily—and summarily—rejected.