Freedman v. MCI Telecommun. Corp.

• Decision Date: 06 July 2001
• Docket Number: No. 00-7238,00-7238
• Citation: 255 F.3d 840
• Parties: (D.C. Cir. 2001) Marshall Freedman, Appellant v. MCI Telecommunications Corporation, Appellee
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 840

255 F.3d 840 (D.C. Cir. 2001)

Marshall Freedman, Appellant v. MCI Telecommunications Corporation, Appellee

No. 00-7238

United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 4, 2001

Decided July 6, 2001

Appeal from the United States District Court for the District of Columbia (98cv02753)

Bruce J. Terris argued the cause and filed the briefs for appellant.

Harvey D. Rumeld argued the cause for appellee. With him on the brief was Thomas F. O'Neil, III.

Before: Edwards, Chief Judge, Sentelle and Randolph, Circuit Judges.

Opinion for the Court filed by Circuit Judge Randolph.

Randolph, Circuit Judge:

Title VII of the Civil Rights Act of 1964 forbids an employer from "discriminating against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. 2000e2(a)(1). Marshall Freedman contends that MCI Telecommunications violated that prohibition by discriminating against him because of his religion during his brief but tumultuous employment there in 1997.

I.

The story begins in Spring 1997 when Freedman, an Orthodox Jewish man, interviewed for a position as a Network Services Engineer (NSE). Freedman arrived at the interview wearing his religious garments: a yarmulka (also known as a kippah or skullcap) and fringes. He was first interviewed by Jeff Porter, who discussed Freedman's qualifications and showed him the facility. At the end of this interview, Freedman explained to Porter that, because of his religion, he must be permitted time off for various Jewish holidays and that his schedule needed to accommodate the Sabbath, which required him to be home before sundown on Fridays. Freedman claims that Porter "stormed out" of the interview when he learned of his religious restrictions.

Nonetheless, the second phase of the interview proceeded, and Freedman met with Leo Smith, who would actually make the hiring decision. During his interview with Smith, Freedman reiterated his scheduling needs. Shortly after this interview, Smith contacted Freedman, extending a job offer in a phone call to Freedman's wife, and confirming the offer by written letter on May 1. Freedman began work on May 12.

By May 29, the company had its first inkling that something was wrong. On that date, Smith, the manager of the MCI facility where Freedman was employed, received a fivepage, handwritten letter from Freedman detailing a number of complaints about his working conditions as well as listing several requests relating to his training and days that he needed off for jury duty and Jewish holidays. Smith told Porter, Freedman's immediate supervisor, to discuss the issues with Freedman and work out solutions.

Among Freedman's early round of complaints was a lack of access to computers and tools. Freedman was unhappy that he had not yet been assigned his own computer workstation. He was also concerned that he was required to share tools with co-workers. During this early phase of his employment, Freedman was being trained to perform his new job by working with David Swithers and Peter Cartland.

In the first two weeks of June, Freedman reminded Porter that he needed time off for the upcoming Shavous holiday. Freedman claims that, during his discussions with Porter regarding holiday leave, Porter expressed reluctance, even anger, at allowing the time off. Shortly after these meetings, Porter informed Freedman that he was to be moved to the night shift.

On June 9, 1997, Freedman began his tenure on the night shift and had the opportunity to work with a mentor, Scott Huff. Freedman claims, though, that his experiences with Huff were cut short because Huff was very busy covering for other technicians who were on vacation.

On August 12, 1997, Freedman suffered a severe headache and fainting spell that required him to go to the hospital. For the next several weeks, he was absent from work on disability leave. Freedman returned to work on October 6. He claims that he did not have access to a computer workstation for the first three weeks of his return to the day shift. On October 28, 1997, Freedman met with Edward Lynch, a senior human resource generalist. Apparently in response to this meeting, Freedman forwarded to Lynch an 18-page, handwritten letter detailing his claim of discrimination. On November 21, 1997, Freedman filed a charge of discrimination with the Equal Employment Opportunity Commission.

Meanwhile, MCI was undergoing significant structural changes. Sometime in late October or early November, William MacDonald, the Senior Manager of Operations for Washington, D.C. and Virginia, asked Smith for a list of employees in order of their usefulness. Smith provided MacDonald with a ranking that placed Freedman at or near the bottom of all the employees in his department. MacDonald used this list as a basis for making recommendations to his supervisor that employees, including Freedman, be cut from several departments. On January 16, 1998, Freedman was informed that he was to be terminated on March 28, 1998. Freedman filed another charge of discrimination with the EEOC on January 29, 1998. The EEOC declined to pursue the charges on August 11, 1998, and Freedman brought suit in the district court on November 11, contending that MCI had violated Title VII of the Civil Rights Act.

On a motion by MCI, the district court granted summary judgment against Freedman on August 22, 2000. Though sometimes for different reasons, we agree with the district court that MCI is entitled to judgment as a matter of law.

II.

Rule 56 indicates that summary judgment is appropriate when there is "no genuine issue of material fact and ... the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The substantive law is used to identify the "material" facts. See Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). And there must be a "genuine" dispute about those material facts; that is, the evidence must be "such that a reasonable jury could return a verdict for the nonmoving party." See id.

For this case, Title VII provides the legal framework. Freedman is responsible for making out a prima facie case that (1) he is in a protected class, (2) that MCI took an adverse employment action against him and (3) that MCI took the adverse employment action because of his membership in a protected class. See Brown v. Brody, 199 F.3d 446, 452 (D.C. Cir. 1999). It is undoubted that Freedman is a member of a protected class. The contest is in whether he can demonstrate adverse employment actions taken because of his protected status.

Freedman sees discrimination in the following occurrences. First, he claims that his assignment to the night shift was an act of discrimination. Second, he perceives discrimination against him in training opportunities. In a third, and related, complaint, he claims that he was subject to disparate treatment regarding MCI's mentorship program. Fourth, he claims that he was denied the use of computers and tools during his tenure. Fifth, he claims that he was given inappropriate assignments. Sixth, he thinks he was denied oneon-one feedback from supervisors given to other employees. Seventh, he claims that he was badly treated by Jeff Porter. Eighth, and finally, he contends that he was discharged because the joint operation of the other actions he describes made him underqualified and ripe for discharge. We conclude that summary judgment was appropriate because each of the activities complained of, taken alone or collectively, fails to rise to the level of an adverse employment action, lacks evidence of disparate treatment, or both.

A.

Consider first the problem of Freedman's assignment to the night shift. Freedman contends that he was transferred to the night shift because of his religion. Specifically, he contends that Porter moved him to the night shift in retaliation for his request for time off for Jewish holidays. The disparate treatment, according to Freedman, was that NSEs were not transferred to the night shift unless they agreed to go. Since Freedman objected to being moved, he contends that he was treated both adversely and differently than his co-workers.

The district court, relying on our decision in Brown, concluded that Freedman had not suffered an adverse employment action because the transfer to the night shift was lateral and there was no corresponding decrease in salary or benefits. See Freedman v. MCI, No. 98-2753, slip op. at 15 (D.D.C. Aug. 24, 2000). We think that this may read our decision in Brown too broadly. In Brown, we held that a purely lateral transfer was not, in itself, an adverse employment action unless "there are some other materially adverse consequences affecting the terms, conditions, or privileges of [the plaintiff's] employment ..." Brown, 199 F.3d at 457. Thus, it is not enough to ask whether the transfer was purely lateral. We must also ask if other changes in terms, conditions, or privileges followed from the transfer. It is hard to say that transfer to the night shift would not constitute such a change, at least in conditions or privileges. Freedman testified that the change in hours interfered with his education. Further, the fact that Freedman received a pay differential for working on the night shift does not, as the district court held, necessarily demonstrate that he was not adversely affected by the change. Rather, it could demonstrate that the night shift was an undesirable assignment.

Freedman fails to make out a claim of discrimination because he has not established that he was treated differently than other employees because of his religion. MCI contends that Freedman's transfer to the night shift can be explained by Porter's conclusion that Freedman would receive better training on the night shift. In a case such as this, where the plaintiff claims discrimination and the defendant offers...