Currier v. Postmaster General, 01-5248.

• Decision Date: 04 October 2002
• Docket Number: No. 01-5248.,01-5248.
• Citation: 304 F.3d 87
• Parties: Kenneth CURRIER, Appellant, v. POSTMASTER GENERAL, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

304 F.3d 87

Kenneth CURRIER, Appellant, v. POSTMASTER GENERAL, Appellee.

No. 01-5248.

United States Court of Appeals, District of Columbia Circuit.

Argued September 5, 2002.

Decided October 4, 2002.

Appeal from the United States District Court for the District of Columbia (98cv03037).

Joel P. Bennett argued the cause and filed the briefs for appellant.

Marina Utgoff Braswell, Assistant U.S. Attorney, argued the cause for appellee. With her on the brief were Roscoe C. Howard, Jr., U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attorney.

Before: GINSBURG, Chief Judge; SENTELLE and RANDOLPH, Circuit Judges.

Opinion for the Court filed by Circuit Judge RANDOLPH.

RANDOLPH, Circuit Judge:

This is an appeal from the order of the district court dismissing Kenneth Currier's claim alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act. Although the district court framed the order as if it were granted under FED.R.CIV.P. 12(b)(6), the court considered and relied on material outside the amended complaint. This converted the order into one of summary judgment under FED.R.CIV.P. 56, which the Postal Service had sought in the alternative. "If, on a motion ... to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56...." FED. R.CIV.P. 12(b).

Plaintiffs in employment discrimination cases, like plaintiffs in other cases, bear the burden of proof at trial. At the summary judgment stage, Currier had to show only that there was a genuine issue of material fact and that the Postal Service was therefore not entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). The issue before us deals with Currier's reassignment when the Postal Service implemented a reduction in force—or RIF—in 1995, an act of discrimination by his lights. There is no dispute that Currier retained the same pay and benefits after the 1995 RIF as he had before it. Even so, he could make out an actionable injury if there were "materially adverse consequences affecting the terms, conditions, or privileges" of his employment that a reasonable finder of fact could conclude caused him "objectively tangible harm." Brown v. Brody, 199 F.3d 446, 457 (D.C.Cir.1999). This calls for a comparative judgment: what was the situation immediately before the alleged adverse personnel action, and what was the situation after it? Currier claimed that he was reassigned to a "materially lower position with materially lower duties." But by his own admission, the job he held immediately before the 1995 RIF was a "do nothing position."¹ After the RIF he became a manager for legislative support in government relations. He had general budget duties for an office and supervised up to a dozen workers. He thus went from a position before the RIF with no duties to a position after the RIF with some duties. No...