*

The Honorable John R. Gibson, United States Circuit Judge for the Eighth

Circuit Court of Appeals, sitting by designation.

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 06a0183n.06

Filed: March 15, 2006

United States Court of Appeals

FOR THE SIXTH CIRCUIT

___________

No. 03-2561

___________

Davidson Momah, *

*

Plaintiff - Appellant, *

* Appeal from the United States

v. * District Court for the Eastern

* District of Michigan.

Cari M. Dominguez, Chair, United *

States Equal Employment Opportunity *

Commission; Equal Employment *

Opportunity Commission, *

*

Defendants - Appellees. *

___________

Before GUY, BATCHELDER, and JOHN R. GIBSON,*

 Circuit Judges.

___________

JOHN R. GIBSON, Circuit Judge.

Davidson Momah appeals the district court's grant of summary judgment in

favor of his employer, the EEOC, on his claims of discrimination and retaliation in

violation of Title VII of the Civil Rights Act of 1964. We affirm.
1

An EEOC Administrative Judge hears and decides, at the administrative level,

complaints brought by federal employees alleging unlawful discrimination by their

employers.

2

Davidson Momah, who is black, was born and raised in Nigeria. He came to

the United States in 1980 to attend college and later obtained his law degree. In April,

1994, he began working as an investigator in the Detroit, Michigan office of the

EEOC. During his three years as an investigator in Detroit, Momah received periodic

promotions and favorable evaluations from his supervisors. In early 1997, Momah

applied for and was selected to fill a vacant Administrative Judge position in the

EEOC's Memphis, Tennessee office.1

 When Momah moved to Memphis his wife and

daughter remained in Detroit, but it was his intention that they would join him in

Memphis once he found a house for the family. However, in June 1997, Momah was

hospitalized after being physically assaulted by a white supremacist at a gas station.

Traumatized by the attack on her husband and fearful of further attacks, Momah's wife

became unwilling to relocate to the South, and she demanded that he request to be

transferred back to Detroit. Although Momah initially refused, he eventually relented

when his daughter began to experience health problems. 

While visiting his family over the 1997 Christmas season, Momah met with

officials at the Detroit office to discuss the possibility of a hardship transfer to a

vacant Administrative Judge position in Detroit. The director of the Detroit office,

James Neely, told Momah that although he would like to bring him back, he did not

have the authority to do so. However, Neely did explain the process by which Momah

could request a transfer through EEOC headquarters in Washington, D.C. On Neely's

advice, Momah sent a letter to headquarters requesting a hardship transfer to Detroit.

When Ralph Soto at EEOC headquarters received the request, he contacted Walter

Grabon, the director of the Memphis office where Momah was then working as an

Administrative Judge. Grabon opined to Soto that Momah's request should be denied.

By letter dated February 3, 1998, EEOC headquarters notified Momah that it "was

unable to grant [the] request for reassignment to the Detroit District Office at this
3

time." The letter, signed by Soto, stated that the denial was "due to the current

workload and staffing levels in the Memphis District Office" and that the requested

reassignment "would not serve our current operational needs," although it did inform

Momah that headquarters would "be happy to reconsider your transfer request if there

is a change in the [Memphis office's] workload and staffing situation." 

Around the time of the denial, Momah met with Grabon, who told Momah that

he would need him around for at least six months to help reduce the backlog at the

Memphis office before Grabon would support any reassignment request. Momah

reluctantly agreed to this arrangement. Approximately six months later, Momah again

met with Grabon to discuss the possibility of a hardship transfer. By this time,

Momah's daughter had been diagnosed with scoliosis, a condition requiring treatment

by specialists in Detroit and Chicago. Momah showed Grabon a letter that he later

sent to EEOC headquarters recounting his daughter's medical problems and pleading

for urgent action on his transfer request. In the letter Momah stated his willingness

to transfer to any position in Detroit, including a temporary assignment as an

Administrative Judge or even into his former position as an investigator. Momah also

promised to pay his relocation expenses and offered to take the cases assigned to him

for processing in Memphis with him to Detroit if he were permitted to go. Grabon

told Momah not to bother making the request because it would not be approved, but

that he should contact headquarters directly about the matter. During the conversation

Momah informed Grabon that he was aware that a white male Administrative Judge

had been granted a hardship transfer from EEOC headquarters to the Little Rock

office of the EEOC in order for him to be closer to his adopted son. Grabon told

Momah not to believe rumors about transfers of other EEOC employees.

 

Sometime after Momah submitted the transfer request to headquarters, Neely

convened a meeting at the Detroit office to discuss Momah's request. In attendance

were Andrew Sheppard, deputy director of the Detroit office and Gail Cober,

enforcement manager in Detroit. Sheppard, a black male, told Neely that he had no
4

problem with Momah's returning to Detroit, but Cober, a white female, objected.

Momah claims that following this meeting, Cober and Administrative Judge Mimi

Gendreau, another white female in the Detroit office, began mounting pressure on

Neely to convince headquarters to deny Momah's transfer request. Like Cober,

Gendreau objected to Momah's return and voiced her objections to Sheppard and

Neely, even going so far as to tell Sheppard that she would rather resign than ever

work with Momah again. 

While his request was pending in August 1998, Momah flew to EEOC

headquarters to meet with Soto in person to discuss the possibility of a transfer.

Momah relayed his daughter's health condition, his willingness to accept any

assignment in the Detroit office including a temporary detail or an investigator

position, and his willingness to bear his own relocation expenses. However, Soto told

Momah that Detroit did not need any additional staff due to low inventory. Following

the meeting with Soto, Momah went to the office of Elizabeth Thornton, one of Soto's

superiors, to discuss his situation. After listening to his concerns, Thornton told

Momah that the low inventory in Detroit made a transfer there impossible. She

suggested that Momah consider a transfer to the Indianapolis office, since it was

closer to Detroit than Memphis, just to keep his options open. 

In a letter dated September 8, 1998, Momah's second request for a hardship

transfer was formally denied. The letter, signed by Soto, stated that a transfer as either

an Administrative Judge or as an investigator in the Detroit office would "not be

possible ... at this time." It indicated that Momah's request had been discussed with

Neely, who had determined that "a reassignment [to the Detroit office] is not

commensurate with the district's needs." According to Soto, he had asked one of his

subordinates, Marilyn Hayes, to contact Neely regarding Momah's request. According

to Hayes, Neely told her that "the Detroit office did not want [Momah] back" and "he

was not welcome back" because "they had had problems with him when he had been

there." After learning that his request had been denied, Momah contacted Neely
5

directly. Neely admitted to Momah that headquarters had contacted him about

Detroit's inventory, but that the ultimate decision of whether to grant or deny his

transfer request was made out of headquarters. In October, Momah met with Neely

personally at the Detroit office, and Neely again told Momah that he was not

responsible for the denial and that all he did was inform headquarters about inventory

levels at the Detroit office. Later in October, Momah contacted Soto and asked if he

would reconsider the denial. Soto told him, "Mr. Momah, you are not going to

Detroit." In November, Momah met with Grabon, who denied any role in the denial

and told Momah to take up the issue with Neely and headquarters. In the ensuing

months Momah had a number of conversations with Grabon about his desire to

transfer to Detroit during which he informed Grabon that he believed "what they were

doing to [him] was discriminatory."

In September 1999, approximately one year after Momah's second request for

a hardship transfer had been denied, Momah learned that a white investigator, Daniel

Dushman, had been granted a hardship transfer to the Detroit office. Dushman was

an investigator in the Detroit office during the time Momah had worked there. In

early 1999, Dushman had requested and was granted a hardship transfer from Detroit

to the EEOC office in Alberquerque, New Mexico. Less than seven months later,

Dushman wrote to Thornton at EEOC headquarters requesting a hardship transfer

back to Detroit on account of family problems. Despite his being demoted while

working as an investigator in Detroit and his acknowledged performance problems at

the Alberquerque office, Dushman's transfer request was approved. After learning of

Dushman's transfer, Momah contacted numerous EEOC officials in late September

and early October 1999 to renew his request for a transfer. He contacted Jacqueline

Bradley, the director of field management programs, and Marilyn Hayes, both at

EEOC headquarters, to determine the status of any vacancies in the Detroit office, as

well as the current inventory levels there. He made similar inquiries of Neely in the

Detroit office. According to Momah, the officials informed him that the situation had

not changed since his initial request and that his request continued to be denied. 
6

On or about October 13, 1999, Momah initiated contact with an EEO counselor,

claiming that the denials of his transfer requests were discriminatory. After the

informal process failed, Momah filed a formal complaint with the EEO on November

24, 1999, claiming that his repeated requests for a transfer had been denied on account

of his race, color, national origin, gender, and disability, and in retaliation for his

exercise of rights protected under Title VII. Momah's complaint also alleged that the

EEOC, for discriminatory and/or retaliatory reasons: (1) revoked, in September 1998,

an offer to transfer him to an Administrative Judge position in Indianapolis; (2) in

November 1998 rated his performance as "proficient" instead of "outstanding"; (3)

delayed his promotion from GS 13 to GS 14 from December 1999 to January 2000;

and (4) delayed his promotion from GS 12 to GS 13 from December 1998 to February

1999. The EEO notified Momah by letter dated May 26, 2000 that the agency was not

accepting for investigation claims (1), (2) and (4) for failure to initiate contact with

an EEO counselor within forty-five days after they occurred. However, the EEO

accepted for investigation his claims regarding the denial of his transfer requests and

the delay of his most recent promotion and informed him that his denial of transfer

claim was being treated as a continuing violation.

During the course of the EEO investigation, Momah learned that the EEOC had

granted several requests from white females to transfer while his requests were still

pending. Deborah Barno, a trial attorney in the Detroit office, was assigned

temporarily to the vacant Administrative Judge position in Detroit. During the time

that Momah's transfer request was pending, Judith Fournalik requested and was

granted a hardship transfer from the New York EEOC office to an investigator

position in the Detroit office in order for her to be closer to the law school in Ohio she

was then attending. In addition, Linda Stankovich was allowed to return to the Detroit

office to a different position than the one she had previously held, and Tina Hoffman,

who had earlier resigned her position as budget analyst in the Detroit office, was

allowed to return on a contract basis. 
7

In April 2000, the EEOC offered Momah a transfer to an Administrative Judge

position in the Indianapolis office of the EEOC in order for him to be closer to his

family. Momah accepted the transfer and moved to Indianapolis. He claims that he

did so based on representations by EEOC officials that the transfer to Indianapolis was

temporary and that he would be transferred to Detroit as soon as a position became

available there. Momah was unhappy in Indianapolis, describing his experience there

as "a nightmare" due to conflicts with his supervisors over his use of personal time to

travel to Detroit to see his family. During his time in Indianapolis, Momah

periodically renewed his request for a transfer to Detroit. He sent a letter dated May

25, 2000 to Elizabeth Thornton at EEOC headquarters requesting a hardship transfer

from Indianapolis to Detroit. On June 9, 2000 Momah, accompanied by his attorney,

traveled to EEOC headquarters to discuss his request with Jaqueline Bradley. While

acknowledging the difficulty of Momah's personal situation, Bradley told Momah that

a transfer to Detroit would not be possible due to budgetary constraints and the lack

of a vacancy in the Detroit office. Momah's attorney inquired as to the likelihood of

a transfer to the Cleveland office or back to Memphis, but Bradley rejected both

requests: the former on the basis that the Cleveland office was overstaffed, the latter

due to budgetary reasons. By letter dated June 27, 2000, Elizabeth Thornton informed

Momah that his request for a hardship transfer from Indianapolis to Detroit was denied

on the grounds that there were no funded vacancies in the Detroit office. By letter of

July 14, 2000 to Thornton, Momah requested that she reconsider the earlier denial,

and by letter dated August 20, 2000, he again requested a hardship transfer. Thornton

responded by letter dated August 24, 2000 that the situation had not changed and that

there continued to be no vacancies in the Detroit office. 

Momah took a medical leave of absence for depression and work-related stress

in approximately September 2000; he returned to work as an Administrative Judge at

the Indianapolis office on April 9, 2001. Shortly after his return, the EEOC received

funding to permanently fill the Administrative Judge position in Detroit to which

Debra Barno had been assigned on a temporary basis. Momah applied for the position
8

and was considered along with the other applicants. However, he was not selected;

instead, Neely selected Debra Barno for the Administrative Judge position. In

October of 2001, Momah was granted a transfer from the Indianapolis office back to

the Memphis office as an Administrative Judge. However, after accepting the

transfer, a disagreement erupted between Momah and EEOC headquarters over who

would bear the costs of relocation and when Momah was expected to report for duty.

Shortly after this disagreement, Momah notified headquarters that he was rejecting the

transfer to Memphis, stating that "it is in my best interest to remain in the Indianapolis

District Office until all the issues raised in my complaints are resolved either by an

impartial official within the [EEOC] or before the federal court."

Following the investigation into Momah's complaint, the EEOC issued its Final

Action on June 4, 2002. It affirmed the EEO's refusal to investigate Momah's

untimely claims, but went on to address the merits of his claims that (1) since January

1998 he has been denied a hardship transfer to Detroit and that (2) his promotion was

delayed, all on account of his race, color, national origin, gender, disability, and in

retaliation for his engaging in activity protected under Title VII. With respect to his

disability discrimination claim, the EEOC concluded that Momah had failed to

establish that he was a qualified individual with a disability. With respect to his

retaliation claim, the EEOC concluded that he failed to make out a prima facie case

because he presented no evidence that those involved with his transfer or promotion

were aware that he had engaged in any protected activity. The EEOC concluded that

Momah had failed to establish a prima facie case of discrimination on account of race,

color, or national origin on his denial of transfer and delay of promotion claims

because he failed to present evidence that employees not in a protected class were

treated more favorably than he. On his delay of promotion claim, the EEOC

concluded that Momah had also failed to make out a prima facie case because he

failed to show that he suffered an adverse employment action in that he received his

promotion on the first day he was eligible. With respect to his denial of transfer

claim, the EEOC concluded that, even if Momah could make out a prima facie case
9

of discrimination, he failed to present evidence that the agency's reason for denying

his transfer—namely that there were no available positions in Detroit—was a pretext

for discrimination.

Momah filed the present complaint against the EEOC in federal court on

August 30, 2002, alleging violations of Title VII of the Civil Rights Act of 1964, 42

U.S.C. 2000, et seq.; the Rehabilitation Act of 1973, 29 U.S.C. § 791; 42 U.S.C. §

1983; the Westfall Act, 28 U.S.C. § 2679(b)(1); the Federal Tort Claims Act, 28

U.S.C. § 2673; unspecified "EEOC Rules and Regulations"; Washington D.C. Civil

Rights Law; as well as breach of contract claims under Michigan and Washington

D.C. common law. The EEOC filed a motion to dismiss, which the district court

denied as to the Title VII and Rehabilitation Act claims, but granted as to the

remaining claims. Following discovery, the EEOC moved for summary judgment.

The district court issued a bench opinion following a hearing and a written order the

following day granting the EEOC's motion for summary judgment in its entirety. This

appeal followed.

We review the district court's grant of summary judgment de novo. Johnson v.

Kroger Co., 319 F.3d 858, 864 (6th Cir. 2003). In reviewing summary judgment, we

look at the record in the same fashion as the district court, Guarino v. Brookfield Twp.

Trustees, 980 F.2d 399, 403 (6th Cir. 1992), and our review "is limited to the evidence

before the district court when it ruled." Campbell v. Potash Corp. of Sask., Inc., 238

F.3d 792, 797 (6th Cir. 2001). Summary judgment is appropriate only if "the

pleadings, depositions, answers to interrogatories, and admissions on file, together

with the affidavits, if any, show that there is no genuine issue as to any material fact

and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P.

56(c). We view all evidence before us in the light most favorable to the nonmoving

party and draw all reasonable inferences in that party's favor. See Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). A genuine issue of fact

exists when there is "sufficient evidence favoring the non-moving party for a jury to
10

return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249

(1986). Once the movant has pointed to evidence in the record showing that there are

no genuine issues of material fact, the non-moving party must respond setting forth

specific facts showing there is a genuine issue for trial. Guarino, 980 F.2d at 405

(quoting Rule 56(e)). 

The EEOC argues and the district court concluded that Momah's failure to

initiate timely contact with an EEO counselor bars his claim that the EEOC

discriminated against him by denying his requests for a hardship transfer. A federal

employee suing under Title VII must satisfy "rigorous administrative exhaustion

requirements and time limitations." McFarland v. Henderson, 307 F.3d 402, 406 (6th

Cir. 2002) (quoting Brown v. Gen. Servs. Admin., 425 U.S. 820, 833 (1976)).

Relevant here is the requirement that an "aggrieved [federal employee] must initiate

contact with a[n] [EEO] Counselor within 45 days of the matter alleged to be

discriminatory or, in the case of personnel action, within 45 days of the effective date

of the action." 29 C.F.R. § 1614.105(a)(1). Timely contact with an EEO counselor is

an administrative prerequisite to filing an employment discrimination claim in federal

court. Horton v. Potter, 369 F.3d 906, 910 (6th Cir. 2004); McFarland, 307 F.3d at

406.

We conclude that even if Momah failed to initiate timely contact with an EEO

counselor, the EEOC waived its untimeliness defense by addressing the merits of his

denial of transfer claim at the administrative level without raising a timeliness

objection. In a recent Title VII case by a federal employee, we held that "when an

agency accepts and investigates a complaint of discrimination ... it does not thereby

waive a defense that the complaint was untimely." Horton, 369 F.3d at 911 (citing

Belgrave v. Pena, 254 F.3d 384, 387 (2d Cir. 2001); see also Ester v. Principi, 250

F.3d 1068, 1072 n.1 (7th Cir. 2001); Bowden v. United States, 106 F.3d 433, 438

(D.C. Cir. 1997); Rowe v. Sullivan, 967 F.2d 186, 191 (5th Cir. 1992); Boyd v. United

States Postal Serv., 752 F.2d 410, 414 (9th Cir. 1985)). However, we recognized that
11

waiver would occur "when the agency decides the complaint on the merits without

addressing the untimeliness defense." Id. (citing Ester, 250 F.3d at 1071-72; Bowden,

106 F.3d at 438). Here, although the EEO addressed the untimeliness defense with

respect to three of the five claims in Momah's formal complaint, it decided the merits

of Momah's denial of transfer claim. Later, in its Final Action, the agency affirmed

the untimeliness determinations as to three of the five claims, but again decided

Momah's denial of transfer claim on the merits. It was only in support of its motion

to dismiss Momah's federal complaint that the EEOC asserted that the denial of

transfer claim was untimely. In these circumstances we conclude that the agency

waived any timeliness objection, and therefore Momah's denial of transfer claim is

properly before us. See Horton, 369 F.3d at 911; see also Ester, 250 F.3d at 1071-73

(discussing "strong policy considerations" underlying the rule that agency waives

untimeliness defense by failing to address it at administrative level).

Title VII makes it unlawful for an employer "to ... discharge any individual, or

otherwise to discriminate 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. § 2000e-2(a)(1). A Title VII

plaintiff may establish discrimination either by introducing direct evidence of

discrimination or circumstantial evidence supporting an inference of discrimination.

Johnson, 319 F.3d at 864-65. Momah argues that he has presented direct evidence

that his requests for a hardship transfer were denied for discriminatory reasons.

"[D]irect evidence is that evidence which, if believed, requires the conclusion that

unlawful discrimination was at least a motivating factor in the employer's actions."

Id. at 865 (quoting Jacklyn v. Schering-Plough Healthcare Prods. Sales Corp., 176

F.3d 921, 926 (6th Cir.1999)). Unlike circumstantial evidence, it "does not require

a factfinder to draw any inferences in order to conclude that the challenged

employment action was motivated at least in part by prejudice against members of the

protected group." Id. Direct evidence of discrimination "must establish not only that

the plaintiff's employer was predisposed to discriminate . . . , but also that the
12

employer acted on that predisposition." DiCarlo v. Potter, 358 F.3d 408, 415 (6th Cir.

2004) (quotation omitted). 

Momah's purported direct evidence of discrimination consists of comments by

Gail Cober and Mimi Gendreau regarding his African accent and his poor command

of the English language. Viewing the evidence in the light most favorable to Momah,

a jury could possibly conclude that Cober and Gendreau's comments were

discriminatory. Nonetheless, Momah's contention that these comments constitute

direct evidence of discrimination fails because neither Cober nor Gendreau were

responsible for the allegedly discriminatory employment action—the denial of his

transfer requests. Carter v. Univ. of Toledo, 349 F.3d 269, 273 (6th Cir. 2003)

("[C]omments made by individuals who are not involved in the decision-making

process regarding the plaintiff's employment do not constitute direct evidence of

discrimination."); Hopson v. DaimlerChrysler Corp., 306 F.3d 427, 433 (6th Cir.

2002) (comments by manager lacking involvement in the decision-making process do

not constitute direct evidence); Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d

344, 354-55 (6th Cir. 1998) ("An isolated discriminatory remark made by one with no

managerial authority over the challenged personnel decisions is not considered

indicative of age discrimination"). Momah responds that even if Cober and Gendreau

did not have ultimate authority over his transfer requests, their vocal opposition to his

return to Detroit so influenced Neely as to render them the de facto decisionmakers.

 However, this contention fails in two respects. First, the undisputed evidence

demonstrates that although Neely had significant input into the decisionmaking

process, the ultimate decision of whether to grant Momah's request was made out of

EEOC headquarters in Washington D.C. Second, even if we were to assume that

Neely's input was outcome-determinative, there is no evidence that Neely's input was

affected by pressure from Cober and Gendreau, instead of simply reflecting his own

views about the Detroit office's personnel needs. Because Momah has failed to

present evidence that Cober and Gendreau were responsible for headquarters' denial
2

Momah argued to the district court that he was discriminated against on

account of disability in violation of the Rehabilitation Act. However, he does not

raise this issue on appeal, and so has abandoned it. See Kocsis v. Multi-Care Mgmt.,

Inc., 97 F.3d 876, 881 (6th Cir.1996).

13

of his transfer requests, their comments, no matter how insensitive, cannot constitute

direct evidence that his requests were denied for discriminatory reasons. 

Because Momah has failed to present direct evidence of discrimination, he must

proceed under the burden-shifting approach first set out in McDonnell-Douglas Corp.

v. Green, 411 U.S. 792 (1973), and later refined by Texas Dep't of Cmty. Affairs v.

Burdine, 450 U.S. 248 (1981). Johnson, 319 F.3d at 865. Under this framework, the

Title VII plaintiff must carry the initial burden of establishing by a preponderance of

the evidence a prima facie case of unlawful discrimination. DiCarlo, 358 F.3d at 414.

The prima facie case creates a rebuttable presumption of discrimination requiring the

defendant to articulate a legitimate, nondiscriminatory reason for the challenged

action. Id. If the defendant meets this burden, the plaintiff must prove that the

proffered reason was a pretext for unlawful discrimination. Id.

To establish a prima facie case under Title VII, Momah must demonstrate that

(1) he was a member of a protected class; (2) he suffered an adverse employment

action; (3) he was qualified for the position; and (4) he was treated differently than

similarly-situated, non-protected employees. DiCarlo, 358 F.3d at 415 (6th Cir. 2004)

(quotation omitted). Undisputed evidence demonstrates that Momah is a member of

several classes protected by Title VII: he is a black (race) male (gender) from Nigeria

(national origin).2

 Likewise, Momah produced evidence that he was qualified for both

the Administrative Judge and investigator positions in Detroit to which he repeatedly

requested transfer. Moreover, there is evidence from which a jury could conclude that
3

The record demonstrates that: (1) Dan Dushman, a white male, was granted a

hardship transfer to an investigator position in Detroit; (2) Deborah Barno, a white

female, was assigned temporarily to the vacant Administrative Judge position in

Detroit; (3) Judith Fournalik, a white female, was granted a hardship transfer to an

investigator position in the Detroit office; (4) Linda Stankovich, a white female, was

allowed to return to the Detroit office to a different position than the one she had

previously held; and (5) Tina Hoffman, a white female, was allowed to return to the

Detroit office on a contract basis after earlier having resigned. See Ercegovich, 154

F.3d at 352 (holding that comparables need not be identical; rather, they need only be

similarly situated "in all of the relevant aspects"). 

14

non-protected, but similarly-situated, employees were treated more favorably than

Momah.3

Although Momah has established three elements of his prima facie case, he has

not demonstrated that the denials of his requests for a purely lateral transfer were

"adverse employment actions" actionable under Title VII. We have previously held

that an "adverse employment action" is one that results in a "materially adverse

change in the terms and conditions of [plaintiff's] employment." Hollins v. Atlantic

Co., 188 F.3d 652, 662 (6th Cir. 1999); Kocsis, 97 F.3d at 886. A "materially

adverse" change in the terms or conditions of employment is typically characterized

"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." Hollins, 188 F.3d at 662. Under this definition, it

would appear that a purely lateral transfer or denial of the same, which by definition

results in no decrease in title, pay or benefits, is not an adverse employment action.

See Kocsis, 97 F.3d at 886, a conclusion consistent with the authority from our sister

circuits. See, e.g., Williams v. R.H. Donnelley, Corp., 368 F.3d 123, 128 (2d Cir.

2004); O'Neal v. City of Chicago, 392 F.3d 909, 913 (7th Cir. 2004); Amro v. Boeing

Co., 232 F.3d 790, 797-98 (10th Cir. 2000); LePique v. Hove, 217 F.3d 1012, 1014

(8th Cir. 2000); Brown v. Brody, 199 F.3d 446, 455-56 (D.C. Cir. 1999); Boone v.
4

Momah urges us to reject this uniform authority based on the First Circuit's

remark in Randlett v. Shalala, 118 F.3d 857, 862 (1st Cir. 1997), refusing to "accept

the . . . view that a refusal to transfer is automatically outside Title VII." We decline

to do so.

15

Goldin, 178 F.3d 253, 256 (4th Cir. 1999); Burger v. Cent. Apartment Mgmt., 168

F.3d 875, 879 (5th Cir. 1999); Doe v. Dekalb County Sch. Dist., 145 F.3d 1441, 1448

(11th Cir. 1998).4

Momah presents no evidence that he suffered a loss of pay, benefits, or title, or

any alteration in his job responsibilities as a result of being denied a transfer to

Detroit; instead he contends that the denial was adverse because it denied him the

opportunity to be closer to his family. His argument raises the issue of whether the

adversity of a given employment action should be judged based on an objective or

subjective standard. We have previously held that an "employee's subjective

impressions as to the desirability of one position over another are not relevant" in

determining whether the employee suffered an adverse employment action.

Policastro v. Northwest Airlines, Inc., 297 F.3d 535, 539 (6th Cir. 2002); see also

Strouss v. Mich. Dep't of Corr., 250 F.3d 336, 343 n.2 (6th Cir.2001) (explaining that

"purely personal reasons for turning down a transfer are not sufficient to render a

transfer an adverse employment action"); Reese v. State of Mich. Family

Independence Agency, 31 Fed.App'x 172, 174 (6th Cir. 2002) (relying on Strouss to

hold that "purely personal reasons for requesting a transfer are not sufficient to render

its denial an adverse employment action."). Instead, we employ an objective test that

considers whether the employment action at issue was "objectively intolerable to a

reasonable person." Policastro, 297 F.3d at 539 (citing Kocsis, 97 F.3d at 886);

Strouss, 250 F.3d at 342; see also Keeton v. Flying J, Inc., 429 F.3d 259, 264-66 (6th

Cir. 2005) (applying objective test to determine whether lateral geographic transfer

constituted adverse employment action). Our circuit's focus on objective indicia of

adversity is consistent with the holdings of our sister circuits that an employee's

subjective preference for one position over another is insufficient to render the denial
16

of a purely lateral transfer an adverse employment action under Title VII. See, e.g.,

O'Neal, 392 F.3d at 913 (holding that a "purely subjective preference for one position

over another" does not "justify trundling out the heavy artillery of federal

antidiscrimination law" in a Title VII claim for the denial of a lateral transfer where

"the two jobs were equivalent other than in idiosyncratic terms") (quotation and

citation ommited); Williams, 368 F.3d at 128 (rejecting employee's denial of transfer

claim on grounds that employee's desire to return to Las Vegas where she still

maintained a home was merely a "subjective, personal disappointment[]" insufficient

to "meet the objective indicia of an adverse employment action"); Sanchez v. Denver

Pub. Sch., 164 F.3d 527, 532-33 n.6 (10th Cir.1998) ("If a transfer is truly lateral and

involves no significant changes in an employee's conditions of employment, the fact

that the employee views the transfer either positively or negatively does not of itself

render the denial or receipt of the transfer [an] adverse employment action").

Applying these principles to Momah's claim, we conclude that he has failed to

produce evidence from which a jury could conclude that the denial of his request to

be transferred to either an investigator or Administrative Judge position in the Detroit

office would be adverse to a reasonable person. First, the record demonstrates that a

transfer from Momah's position as an Administrative Judge in Memphis to the

investigator position in Detroit would have constituted a demotion within the EEOC,

which would lead a reasonable jury to conclude that Momah had suffered an adverse

employment action if his request for a demotion had been granted. See, e.g.,

Williams, 368 F.3d at 128 ("Clearly, an employer's denial of a transfer request that

would have resulted in a reduction in pay and the employee's demotion within the

organization, without more, does not constitute an adverse employment action.").

Second, Momah presents no evidence that the Administrative Judge position in

Detroit differed in any way, save for proximity to his family, from the identical

position he held as an Administrative Judge in Memphis, and thus fails to provide

evidence from which a jury could conclude that the Memphis position was objectively
5

The Supreme Court's grant of certiorari to this circuit's en banc decision in

White v. Burlington Northern & Santa Fe R. Co., 364 F.3d 789 (6th Cir. 2004), to

resolve a split among the circuits as to the scope of an adverse employment action in

the context of a Title VII retaliation claim, see Burlington Northern & Santa Fe R.

Co. v. White, ---S.Ct. ----, 2005 WL 3272153, 74 U.S.L.W. 3130 (December 5, 2005),

does not call for a different result here, as the job transfer at issue there was not a

purely lateral transfer, it was a demotion; the position from which the employee was

transferred was "objectively considered a better job." White, 364 F.3d 803-804. 

17

worse than the identical position in Detroit. Because Momah has not shown that he

suffered an adverse employment action, he fails to establish a prima facie case.5

Momah argues that the district court "abused its discretion by completely

ignoring all of [his] evidence in support of his retaliation claims." Title VII prohibits

retaliation by an employer where an individual has engaged in protected activity. 42

U.S.C. § 2000e-3(a). A plaintiff can establish retaliation under Title VII without

direct evidence under the burden-shifting approach set forth in McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973). See, e.g., DiCarlo, 358 F.3d at 420. Under this

standard, Momah must first establish a prima facie case of retaliation by showing that

(1) he engaged in an activity protected by Title VII; (2) the defendant knew of the

exercise of his rights; (3) the defendant took an employment action adverse to the

plaintiff; and (4) there was a causal connection between the protected activity and the

adverse employment action. Id. If Momah can establish a prima facie case, the

burden of coming forward with a legitimate, non-discriminatory reason for the adverse

employment action falls upon the EEOC. Id. (quotation omitted). However, if the

EEOC articulates a non-discriminatory reason, it is then Momah's burden to show that

the EEOC's reasons are merely a pretext for retaliation. Id.

 Momah points to four actions allegedly undertaken by the EEOC to retaliate

against him for filing an EEO complaint: (1) delaying one of his promotions; (2)

negatively rating his performance; (3) refusing to process his subsequent EEO

complaints; and (4) failing to grant his transfer requests. He fails to make out a prima
18

facie case for any of these claims. First, with respect to the delay of promotion claim,

Momah presents no evidence to rebut the EEOC's evidence that he received his

promotion on the first day he became eligible, namely the one-year anniversary of his

previous promotion. Second, with respect to the performance rating claim, the

undisputed evidence demonstrates that Momah never received a negative performance

rating; he consistently received mid-range performance ratings, which are not

actionable adverse employment actions under Title VII. See Hollins, 188 F.3d at 662.

Third, there is no separate cause of action for his claim regarding the EEOC's alleged

failure to process his complaint, see, e.g., Jordan v. Summers, 205 F.3d 337, 342 (7th

Cir. 2000) (holding plaintiff's claim that agency "botched the processing of her [EEO]

complaint ... does not state a claim upon which relief can be granted"); rather, if

Momah was dissatisfied with the agency's handling of a complaint his remedy was to

do precisely what he did here: proceed to federal court. Id. Lastly, with respect to his

claim that the EEOC retaliated against him by failing to grant his transfer requests, as

discussed above, the denial of a purely lateral transfer without more is insufficient to

constitute an "adverse employment action" under Title VII. See Kocsis, 97 F.3d at

886.

The judgment of the district court is affirmed.