Summary
holding that denying a "request for four hours of `official time' is a de minimis action does not meet the definition of an adverse employment action"
Summary of this case from WALZ v. POTTEROpinion
Case No. 1:99cv 795
March 16, 2001.
JUDGMENT
In accordance with the memorandum opinion issued this date:
IT IS ORDERED that plaintiff's motion to determine sufficiency of answers or objections (docket # 52) be and hereby is DISMISSED as moot.
IT IS FURTHER ORDERED AND ADJUDGED that summary judgment be and hereby is GRANTED on behalf of defendants and against plaintiff on all claims. Defendants may tax their costs.
MEMORANDUM OPINION
This is a pro se action brought against the Postmaster General under Title VII of the Civil Rights Act of 1964. By order entered December 21, 2000 (docket # 46), this court granted defendant a partial summary judgment, dismissing all claims except plaintiff's retaliation claim based upon the September 2, 1998 denial of his request for four hours of research time. Defendant has now moved for a final summary judgment on the only remaining claim. Plaintiff opposes the motion. The court determines that the motion raises a pure issue of law, and that oral argument would not be helpful. The standard for determining whether summary judgment is appropriate is "whether `the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" See Adcox v. Teledyne, Inc., 21 F.3d 1381,1385 (6th Cir. 1994) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986)). In the present case, there is no factual dispute whatsoever. Defendant concedes that on September 2, 1998, plaintiff requested four hours of "official time" in which to do research in connection with a discrimination complaint. Plaintiff's supervisor, Daniel Verastequi, denied the request. On the same day, plaintiff invoked his right to EEOC counseling. He received his initial interview with an EEO counselor on November 10, 1998. Plaintiff pursued some administrative remedies, which ultimately culminated in a final agency decision issued by the Postal Service on July 13, 1999. The agency found that plaintiff failed to state a prima facie case of retaliation and further found that plaintiff had not established a violation of EEOC regulations, 29 C.F.R. § 1614.605(b), which require the grant of a reasonable amount of time to prepare a discrimination complaint and to respond to requests for information .On October 12, 1999, plaintiff filed the instant action alleging, among other things, that the agency's failure to grant him four hours of "official time" under the regulation was actionable as retaliation under Title VII.
Discussion
As noted above, the facts underlying plaintiff's claim of retaliation are admitted by defendant. Indeed, defendant concedes for purposes of the motion that the denial of plaintiff's request for official time constituted a violation of 29 C.F.R. § 1614.605(b), which requires that employees be granted reasonable official time in connection with the prosecution of EEOC matters. The legal question for this court is whether defendant's denial of four hours of "official time" may form the basis of a retaliation claim under Title VII. In order to find a prima facie case of retaliation under Title VII, a plaintiff must prove by a preponderance of the evidence: (1) plaintiff engaged in activity protected by Title VII; (2) plaintiff's exercise of his civil rights was known by the defendant; (3) thereafter the defendant took an employment action adverse to plaintiff; and (4) there was a causal connection between the protected activity and the adverse employment action. Hafford v. Seidner, 183 F.3d 506, 515 (6th Cir. 1999); EEOC v. Avery Denison Corp., 104 F.3d 858, 860 (6th Cir. 1997). Defendant's motion for summary judgment challenges the legal sufficiency of plaintiff's claim with regard to the third element of a prima facie case — the existence of an adverse employment action. In Hollins v. Atlantic Co., 188 F.3d 652 (6th Cir. 1999), the Sixth Circuit noted the requirements for establishing materially adverse employment action:
Defendant has provided the court with numerous decisions of the EEOC granting relief for violation of the regulation, not on a discrimination theory, but on the simple basis that the denial constitutes a violation of regulation. The question of a violation of the regulation is not before the court, and is a matter for the Commission.
[A] materially adverse change in the terms and conditions of employment must be more disruptive than a mere inconvenience or an alteration of job responsibilities. A materially adverse change might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices that might be unique to a particular situation.188 F.3d at 662 (citations omitted); accord Bowman v. Shawnee State Univ., 220 F.3d 456, 461-62 (6th Cir. 2000). The Sixth Circuit has consistently held that de minimis employment actions are not materially adverse and, thus, are not actionable under Title VII either as discrimination or retaliation. For example, in Bowman, the Sixth Circuit determined that a plaintiff's ten-day loss of his position as coordinator did not qualify under this standard. 220 F.3d at 461-62; see also Jacklyn v. Schering-Plough Health-Care Products Sales Corp., 176 F.3d 921, 930 (6th Cir. 1999) (holding that "neither requiring plaintiff to work at home while she was recovering from out-patient surgery, nor rejecting computer expenses that previously had been approved, were material adverse employment actions"); Kocsis v. Multi-Care Mgmt. Inc., 97 F.3d 876, 885 (6th Cir. 1996) (holding that "reassignments without salary or work changes do not ordinarily constitute adverse employment decisions in employment and discrimination claims").
The same rule requires a finding that the denial of plaintiff's request for four hours of "official time" is a de minimis action and does not meet the definition of an adverse employment action. The concept that an employee should be paid for time spent researching an EEOC charge is one created by regulation. Although the regulation certainly provides help to an EEO claimant, this court cannot conclude that the denial of four hours of official time is in any sense an adverse employment action. Plaintiff's Title VII claim for retaliation therefore fails as a matter of law. Defendant's motion for summary judgment will be granted.
Also pending before the court is plaintiff's motion to determine the sufficiency of answers to Rule 36 requests for admissions. (docket # 52). As the court has found that no factual issue remains in dispute, resolution of plaintiff's discovery motion is rendered moot.
A final judgment will be entered on behalf of defendants and against plaintiff.