United States District Court, N.D. Illinois
April 16, 2004.
FOSTER PALMER, Plaintiffs
ANTHONY J. PRINCIPI, Secretary of Veterans Affairs, Department of Veterans Affairs, Defender
The opinion of the court was delivered by: ARLANDER KEYS, Magistrate Judge
MEMORANDUM OPINION AND ORDER
Plaintiff, Foster Palmer, brought this Title VII action against
Defendant, Anthony J. Principi, Secretary of Veterans Affairs (the VA).
The VA now moves for summary judgment. For the reasons below, the court
grants the VA's motion.
This lawsuit arises out of the circumstances surrounding Foster
Palmer's retirement from the VA after thirty years of service. During his
tenure, Mr. Palmer held various positions and titles. In 1994, Mr. Palmer
became chief of the Business Services Office of the VA's National
Acquisition Center (NAC). As chief, Mr. Palmer was responsible for
marketing VA contracts to other government agencies. Mr. Palmer also had
the authority to bind the VA to contracts for goods and services. Shortly before Mr. Palmer became chief, a VA employee brought sexual
harassment charges against him. Upset by the VA's subsequent
investigations, Mr. Palmer filed a series of Equal Employment Opportunity
(EEO) complaints against the VA, claiming that the VA was using the
sexual harassment investigations to force him into an early retirement.
In March 1996, Mr. Palmer and the VA agreed to mediate his EEO
complaints. With the assistance of counsel, the parties reached a
settlement agreement whereby Mr. Palmer agreed to retire by June 1, 1996
or no later than November 1, 1996 if Mr. Palmer secured temporary
assignment outside the NAC (the Settlement Agreement). The Settlement
Agreement also provided that, upon reasonable documentary proof of
damages and expenses, the VA would pay Mr. Palmer a lump sum payment of
$75,000 by January 31, 1997. After executing the Settlement Agreement,
the VA placed Mr. Palmer on paid leave until June 1, 1996. Mr. Palmer
then decided to procure temporary assignments outside the NAC, rather
than elect the June 1 retirement date.
Soon after signing the Settlement Agreement, Mr. Palmer began demanding
that the VA pay him the agreed upon $75,000. Various issues arose over
the adequacy of Mr. Palmer's medical documentation. The VA claims that,
despite the parties' disagreements, it hoped to meet the January 31, 1997
deadline. But Mr. Palmer was not satisfied. So, on November 4, 1996, he returned to the VA and announced that he wished to continue working.
To accommodate Mr. Palmer's unexpected return, the VA created a
temporary position that of liaison between the NAC and the VA's
Washington D.C. business services office.*fn1 Although the job paid the
same salary as his previous post, Mr. Palmer was not pleased with his new
position. He complains that the VA put him in a separate building, apart
from his former NAC colleagues. Mr. Palmer also complains that, in
contrast to his former post, he did not have a dedicated parking space,
his name was not listed in the agency phone directory, and he did not
have a properly functioning computer or adequate office supplies. Mr.
Palmer further claims that his supervisor did not invite him to regular
staff meetings, and that VA employees generally ignored him. Mr. Palmer
says that these circumstances caused him to feel ostracized, degraded,
Meanwhile, the parties continued negotiating payment of the settlement
monies. After considerable discussion, the parties executed an addendum
to the Settlement Agreement wherein the VA agreed to make payment on a
date certain and Mr. Palmer agreed to retire. Despite this resolution,
Mr. Palmer filed another EEC complaint, alleging that the VA's decision
to place him in the temporary position was retaliatory. Without deciding the matter,
the EEOC remanded Mr. Palmer's complaint to the VA for a final agency
decision. On April 22, 2002, the VA denied Mr. Palmer's retaliation
claim, finding that Mr. Palmer did not suffer an adverse employment
action. Mr. Palmer subsequently filed charges with the EEOC, which issued
a right to sue. Mr. Palmer then initiated the instant lawsuit, and
subsequently consented to proceed before this Court.
Mr. Palmer's complaint alleges that the VA retaliated against him after
he engaged in statutorily protected activity. Following written
discovery, the VA now moves for summary judgment. The VA argues that Mr.
Palmer has not produced evidence to sustain his retaliation claim and
that summary judgment is, therefore, appropriate.
STANDARD OF REVIEW
The court will grant summary judgment only if the pleadings and
supporting documents show that there is no genuine issue of material fact
and that the moving party is entitled to a judgment as a matter of law.
Fed.R.Civ.P. 56(c)(2003). A genuine issue of material fact exists if the
evidence is such that a reasonable jury could return a verdict for the
nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). In determining whether a genuine issue of material fact exists,
the court views the facts in the light most favorable to the nonmoving
party and draws all reasonable inferences in the nonmoving party's favor. Shank v.
William R. Hauge, Inc., 192 F.3d 675, 681 (7th Cir. 1999).
The moving party in a motion for summary judgment bears the initial
burden of demonstrating that no genuine issue of material fact exists.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party's
burden is met, then the nonmoving party must set forth specific facts
showing that there is a genuine issue for trial in order to survive
summary judgment. Schacht v. Wisconsin Dep't of Corrs., 175 F.3d 497, 504
(7th Cir. 1999). In a summary judgment proceeding, the Court will
disregard all facts not properly supported by the record. Brasic v.
Heinemann's Inc., 121 F.3d 281, 284 (7th Cir. 1997).
Unlawful retaliation occurs when an employer takes an adverse
employment action against an employee for opposing impermissible
discrimination. Rogers v. City of Chicago, 320 F.3d 748, 753 (2003);
42 U.S.C. § 2000e-3. To overcome summary judgment, the plaintiff may
establish a prima facie case of retaliation using either the direct
method or the direct method of proving discrimination. Stone v. City of
Indianapolis Public Utilities Division, 281 F.3d 640, 644 (7th Cir.
2002). Under the direct method, the plaintiff must present direct
evidence of (1) a statutorily protected activity; (2) an adverse
employment action taken by the employer; and (3) a causal connection between the
two. Id. (emphasis added). Under the indirect method, the plaintiff must
show that (1) he engaged in a statutorily protected activity; (2) he
performed his job according to his employer's legitimate expectations; (3)
despite his satisfactory job performance, he suffered an adverse action
from the employer; and (4) he was treated less favorably than similarly
situated employees who did not engage in statutorily protected activity.
Id. (emphasis added). Required under both analyses is that the plaintiff
suffered an adverse employment action. The court finds that Mr. Palmer
did not suffer an adverse employment action, entitling the VA to summary
judgment on his retaliation claim under either the direct or indirect
Mr. Palmer alleges that the VA's decision to place him in a temporary
position, which lacked some of the responsibilities and amenities of his
previous post, constituted a materially adverse employment action.
Specifically, Mr. Palmer alleges that the temporary position was located
in an isolated building, away from his former colleagues. Mr. Palmer also
complains that the VA did not provide him with a dedicated parking space,
an adequately functioning computer, or sufficient office supplies. Mr.
Palmer further complains that he was not invited to staff meetings and
his name was not listed in the staff directory. Lastly, Mr. Palmer
alleges that the temporary position significantly diminished his prior authority. Mr. Palmer claims that these changed conditions caused
him to feel isolated, ostracized, and humiliated. Mr. Palmer, therefore,
concludes that he suffered a materially adverse employment action. The
Many of Mr. Palmer's complaints constitute mere inconveniences, not
adverse employment actions. Hilt-Dyson v. City of Chicago, 282 F.3d 456,
465 (7th Cir. 2002) (material adverse employment action is something more
than a mere inconvenience). Some plainly trivial examples include Mr.
Palmer's dissatisfaction with his parking space, office supplies, and
malfunctioning computer. None of these complaints significantly altered
the terms and conditions of Mr. Palmer's job and are, therefore, not
actionable. Griffin v. Potter, 356 F.3d 824, 829 (7th Cir. 2004)(adverse
employment action is one that significantly alters the terms and
conditions of the employee's job).
Mr. Palmer's more substantive complaints also do not amount to adverse
employment actions. These complaints include Mr. Palmer's allegations
about his office location, absence of his name from the phone directory,
and lack of invitations to staff meetings. While it is true that Mr.
Palmer's new office was located in a separate building, the building was
a mere sixty yards away from his former office. Regarding the absence of
his name from the agency phone directory, it is not uncommon, nor is it unreasonable, for employees to experience delays before large
bureaucracies accommodate their administrative needs. More importantly,
Mr. Palmer was not a brand-new employee. He had worked at the VA for over
thirty years. If he wanted his name added to the phone directory, he
likely knew whom to contact. The same goes for Mr. Palmer's complaints
regarding the staff meetings. Mr. Palmer admits that he did not ask to be
included in staff meetings. Mr. Palmer's absence from the meetings, like
his absence from the phone directory, seems to be the result of his own
inaction, and not the result of an adverse employment action.
Furthermore, Mr. Palmer's feelings of isolation, ostracism, and
humiliation does not necessarily evidence adverse employment actions. Not
everything that makes an employee unhappy is an actionable adverse
action. Cullom v. Brown, 209 F.3d 1035, 1041 (7th Cir. 2000). Nor can
Mr. Palmer establish that his colleagues' alleged indifference to his
deteriorating mental condition amounted to an adverse employment action.
General hostility does not qualify as actionable adverse employment
actions. Hilt-Dyson, 282 F.3d at 466. And Mr. Palmer has certainly not
demonstrated that any alleged hostility was so serve and pervasive as to
be actionable. Id. at 466 (general hostility and comments do not qualify
as adverse employment actions unless the hostility was severe and
Lastly, Mr. Palmer's remaining complaint regarding his diminished responsibilities similarly fails to evidence an adverse
employment action. Mr. Palmer alleges that his former position allowed
him to bind the VA to contracts, whereas the new position did not. While
it is true that materially adverse actions may include a demotion
evidenced by significantly diminished material responsibilities, Hilt
Dyson, 282 F.3d at 465-66, it is also true that a lateral transfer
involving no reduction in pay and no more than a minor change in job
conditions cannot rise to the level of a materially adverse employment
action. Williams v. Bristol Myers Squibb Co., 85 F.3d 270, 274 (7th Cir.
1996). Mr. Palmer's new position paid the exact same salary as his former
position. While the position might have lacked some of the authorities
that accompanied his former post, the new position also carried its own
particular set of responsibilities and authorities. It appears that Mr.
Palmer's dissatisfaction with the authorities granted by his new
position, merely represents his subjective preference for one position
over another. Such preferences cannot constitute evidence of adverse
employment actions. Herrnreiter v. Chicago Housing Authority, 315 F.3d 742,
745 (7th Cir. 2003). Therefore, because none of Mr. Palmer's complaints
rise to the level of adverse employment actions, his retaliation claim
But before concluding, the court should address a related issue. In
addition to complaining about the conditions of his new position, Mr.
Palmer has spent considerable effort arguing that the VA intentionally delayed paying him his settlement monies. It
is unclear whether Mr. Palmer seeks to characterize the VA's alleged
delay as an additional adverse employment action. If he does, the
characterization is without merit. The vast majority of incidents
referenced that relate to the VA's alleged delay, regard negotiations and
discussions that occurred prior to the Settlement Agreement's payment
deadline. Mr. Palmer was apparently anxious to get his money, as he began
demanding payment immediately after signing the Settlement Agreement. But
the VA was certainly under no obligation to honor Mr. Palmer's immediate
demands, and it strains the imagination to understand how the VA's
refusal to honor Mr. Palmer's premature requests constituted an adverse
employment action. Accordingly, this alternate position is untenable.
Thus, because Mr. Palmer cannot demonstrate an adverse employment action,
his retaliation claim must fail.
For the sake of completeness, the court will briefly address some of
the other problems with Mr. Palmer's case. As stated above, under the
direct method of proving retaliation, a plaintiff must demonstrate a
causal connection between the adverse employment action and the protected
activity. Stone, 281 F.3d at 644. Mr. Palmer cannot make this showing.
Assuming, arguendo, that Mr. Palmer's changed employment conditions
constituted an adverse employment action, Mr. Palmer cannot demonstrate
that his protected activity precipitated the new position. Rather, the
new position was created to accommodate Mr. Palmer's unannounced and
unexpected arrival at the VA's door after he had agreed to retire. To
ascribe retaliatory motives to the VA's accommodation is illogical.
Moreover, if Mr. Palmer was not restored to his previous position, it was
not because the VA sought to retaliate against him, rather it was because
Mr. Palmer's former post had been relocated to Washington D.C. Thus,
because Mr. Palmer cannot demonstrate the requisite causal connection
between his protected activity and the alleged adverse employment
action, his retaliation claim fails for another reason.
This same flaw surfaces if Mr. Palmer's case is considered under the
indirect method of proving retaliation. Assuming, arguendo, that
Mr. Palmer could establish a prima facie case of retaliation using the
indirect method,*fn2 Mr. Palmer has offered no evidence to rebut the
VA's noninvidious reasons for the adverse employment action. Stone, 281
F.3d at 644 (the employer is entitled to summary judgment despite the
employee's prima facie case if the employer presents unrebutted evidence
of a noninvidious reason for the adverse action). The VA gave Mr. Palmer
the new position to accommodate his unexpected return. And the VA could
not restore Mr. Palmer to his prior position because the position had been relocated to Washington, D.C. Because the VA's
reasons are legitimate, nondiscriminatory, and unrebutted, Mr. Palmer's
retaliation claim fails for yet another reason.
IT IS HEREBY ORDERED THAT, for the reasons set forth above, Defendants'
Motion for Summary Judgment be, and the same hereby is, GRANTED.