Baloch v. Kempthorne

• Decision Date: 30 December 2008
• Docket Number: No. 07-5330.,07-5330.
• Parties: Mohammad S. BALOCH, Appellant v. Dirk KEMPTHORNE, Secretary of the Interior, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

550 F.3d 1191

Mohammad S. BALOCH, Appellant v. Dirk KEMPTHORNE, Secretary of the Interior, Appellee.

No. 07-5330.

United States Court of Appeals, District of Columbia Circuit.

Argued October 23, 2008.

Decided December 30, 2008.

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.

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.

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 "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 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, 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 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

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...