Wayne Bridgeforth v. Sally Jewell

721 F.3d 661, 406 U.S. App. D.C. 29, 2013 WL 3305711, 2013 U.S. App. LEXIS 13467, 97 Empl. Prac. Dec. (CCH) 44,864, 118 Fair Empl. Prac. Cas. (BNA) 1793
CourtCourt of Appeals for the D.C. Circuit
DecidedJuly 2, 2013
Docket12-5015
StatusPublished
Cited by114 cases

This text of 721 F.3d 661 (Wayne Bridgeforth v. Sally Jewell) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Wayne Bridgeforth v. Sally Jewell, 721 F.3d 661, 406 U.S. App. D.C. 29, 2013 WL 3305711, 2013 U.S. App. LEXIS 13467, 97 Empl. Prac. Dec. (CCH) 44,864, 118 Fair Empl. Prac. Cas. (BNA) 1793 (D.C. Cir. 2013).

Opinions

Opinion for the Court filed by Circuit Judge GRIFFITH.

Concurring opinion filed by Circuit Judge HENDERSON.

GRIFFITH, Circuit Judge:

Wayne Bridgeforth appeals the district court’s grant of summary judgment against him on his claim that workplace supervisors unlawfully denied him time-off awards in retaliation for his pursuit of a protected activity. For the reasons set forth below, we affirm the district court.

I

Bridgeforth has been a police officer with the United States Park Service, an agency within the Department of the Interior, since 2002. In 2004, he filed an employment discrimination claim, which settled in May 2007. According to Bridgeforth, once the suit settled, his supervisors retaliated by failing to nominate him for time-off awards (i.e., paid leave) on five occasions over the next three months.

Bridgeforth’s retaliation claim is part of a suit that alleged workplace discrimination under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. The district court granted summary judgment to the Department of the Interi- or on all Bridgeforth’s claims, Bridgeforth v. Salazar, 831 F.Supp.2d 132, 136 (D.D.C.2011), and he appealed. On June 15, 2012, a special panel of this court granted the department’s motion for summary affir-mance on all but the retaliation claim, Bridgeforth v. Salazar, No. 12-5015, 2012 WL 2371601 (D.C.Cir. June 15, 2012), which was assigned to this panel for oral argument. We exercise our jurisdiction pursuant to 28 U.S.C. § 1291 and review the district court’s grant of summary judgment de novo. Salazar v. Washington Metro. Area Transit Auth., 401 F.3d 504, 507 (D.C.Cir.2005).

II

During his time with the Park Service, Bridgeforth alleges that he received seven time-off awards: one in 2003, four in 2005, and two in 2006. Bridgeforth argues that five acts he performed in the three months following the May 2007 settlement of his discrimination claims merited time-off awards as well.

• On June 20, Bridgeforth arrested and helped identify a suspect who had assaulted an intoxicated victim.
• On July 20, he volunteered to patrol a local park in plain clothes and, with the assistance of other officers, investigated and arrested two suspects for possession of cocaine and marijuana.
• On August 17, Bridgeforth joined agents of the United States Secret Service in forming a human chain to pull a person out of an overturned car.
• On August 18, he arrested boaters in Washington Harbor “based on his knowledge of Washington trespass law” and prevented other officers from making unlawful arrests.
• On August 24, Bridgeforth assisted in a vehicle pursuit and the subsequent arrest and investigation.

Neither Bridgeforth nor any of the other Park Service officers involved was nominated for a time-off award, or any other [663]*663form of recognition, for their roles in any of these incidents.

The dry spell soon ended. On September 6, 2007, the Park Service awarded Bridgeforth a written commendation for his work in recovering a stolen vehicle. On October 2, 2007, the Park Service again awarded him a written commendation, this time for assisting in the recovery of illegal weapons and drugs.

Ill

To sustain a prima facie case of unlawful retaliation, Bridgeforth must show that the Park Service took materially adverse action against him because he participated in protected activity. See McGrath v. Clinton, 666 F.3d 1377, 1380 (D.C.Cir.2012) (“To prove unlawful retaliation, a plaintiff must show: (1) that he opposed a practice made unlawful by Title VII; (2) that the employer took a materially adverse action against him; and (3) that the employer took the action ‘because’ the employee opposed the practice.”).

To be materially adverse, the employer’s action must be more than “those petty slights or minor annoyances that often take place at work and that all employees experience.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006). Stated another way, “not everything that makes an employee unhappy is an actionable adverse action. Minor and even trivial employment actions that an irritable, chip-on-the-shoulder employee did not like would otherwise form the basis of a discrimination suit.” Russell v. Principi, 257 F.3d 815, 818 (D.C.Cir.2001) (quoting Smart v. Ball State Univ., 89 F.3d 437, 441 (7th Cir.1996)) (internal quotation marks omitted). Materially adverse action would “dissuade[ ] a reasonable worker from making or supporting a charge of discrimination.” Burlington N., 548 U.S. at 68, 126 S.Ct. 2405 (quoting Rochon v. Gonzales, 438 F.3d 1211, 1219 (D.C.Cir.2006)). Typically, a materially adverse action in the workplace involves “a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing significant change in benefits.” Taylor v. Small, 350 F.3d 1286, 1293 (D.C.Cir.2003) (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998)). Such actions demonstrate an “objectively tangible harm.” See Forkkio v. Powell, 306 F.3d 1127, 1131 (D.C.Cir.2002).

Failure to nominate for time-off awards does not qualify as the type of objective, tangible harm akin to “firing” or “a significant change in benefits” that is obviously materially adverse.

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721 F.3d 661, 406 U.S. App. D.C. 29, 2013 WL 3305711, 2013 U.S. App. LEXIS 13467, 97 Empl. Prac. Dec. (CCH) 44,864, 118 Fair Empl. Prac. Cas. (BNA) 1793, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wayne-bridgeforth-v-sally-jewell-cadc-2013.