temporary position was retaliatory. Without deciding the matter,

the EEOC remanded Mr. Palmer’s complaint to the VA for a final
agency decision. On April 22, 2002, the VA denied Mr. Palmer's
retaliation claim, finding that Mr. Palmer did not suffer an
adverse employment action. Mr. Palmer subsequently filed charges
with the EEOC, which issued a right to sue. Mr. Palmer then
initiated the instant lawsuit, and subsequently consented to
proceed before this Court.

Mr. Palmer’s complaint alleges that the VA retaliated
against him after he engaged in statutorily protected activity.
Following written discovery, the VA now moves for summary
judgment. The VA argues that Mr. Palmer has not produced
evidence to sustain his retaliation claim and that summary
judgment is, therefore, appropriate.

STANDARD OF REVIEW

The court will grant summary judgment only if the pleadings
and supporting documents show that there is no genuine issue of
material fact and that the moving party is entitled to a judgment
as a matter of law. Fed.R.Civ.P. 56(c) (2003). A genuine issue
of material fact exists if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In determining
whether a genuine issue of material fact exists, the court views

the facts in the light most favorable to the nonmoving party and

ee



|

diminished responsibilities similarly fails to evidence an adverse
employment action. Mr. Palmer alleges that his former position
allowed him to bind the VA to contracts, whereas the new position
did not. While it is true that materially adverse actions may
include a demotion evidenced by significantly diminished material
responsibilities, Hilt Dyson, 282 F.3d at 465-66, it is also true
that a lateral transfer involving no reduction in pay and no more
than a minor change in job conditions cannot rise to the level of
a materially adverse employment action. Williams v. Bristol Myers
Squibb Co., 85 F.3d 270, 274 (7th Cir. 1996). Mr. Palmer’s new
position paid the exact same salary as his former position. While
the position might have lacked some of the authorities that
accompanied his former post, the new position also carried its own
particular set of responsibilities and authorities. It appears
that Mr. Palmer’s dissatisfaction with the authorities granted by
his new position, merely represents his subjective preference for
one position over another. Such preferences cannot constitute
evidence of adverse employment actions. Herrnreiter v. Chicago
Housing Authority, 315 F.3d 742, 745 (7th Cir. 2003). Therefore,
because none of Mr. Palmer’s complaints rise to the level of
adverse employment actions, his retaliation claim cannot stand.
But before concluding, the court should address a related
issue. In addition to complaining about the conditions of his new

position, Mr. Palmer has spent considerable effort arguing that



action taken by the employer; and (3) a causal connection between
the two. Id. (emphasis added). Under the indirect method, the
plaintiff must show that (1) he engaged in a statutorily
protected activity; (2) he performed his job according to his
employer’s legitimate expectations; (3) despite his satisfactory
job performance, he suffered an adverse action from the employer;
and (4) he was treated less favorably than similarly situated
employees who did not engage in statutorily protected activity.
Id. (emphasis added). Required under both analyses is that the
plaintiff suffered an adverse employment action. The court finds
that Mr. Palmer did not suffer an adverse employment action,
entitling the VA to summary judgment on his retaliation claim
under either the direct or indirect method.

Mr. Palmer alleges that the VA’s decision to place him ina
temporary position, which lacked some of the responsibilities and
amenities of his previous post, constituted a materially adverse
employment action. Specifically, Mr. Palmer alleges that the
temporary position was located in an isolated building, away from
his former colleagues. Mr. Palmer also complains that the VA did
not provide him with a dedicated parking space, an adequately
functioning computer, or sufficient office supplies. Mr. Palimer
further complains that he was not invited to staff meetings and
his name was not listed in the staff directory. Lastly, Mr. Palmer

alleges that the temporary position significantly diminished his



draws all reasonable inferences in the nonmoving party’s favor.

Shank v. William R. Hauge, Inc., 192 F.3d 675, 681 (7th Cir.
1999).

The moving party in a motion for summary judgment bears the
initial burden of demonstrating that no genuine issue of material
fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
If the moving party’s burden is met, then the nonmoving party
must set forth specific facts showing that there is a genuine
issue for trial in order to survive summary judgment. Schacht v.
Wisconsin Dep’t of Corrs., 175 F.3d 497, 504 (7th Cir. 1999). In
a summary judgment proceeding, the Court will disregard all facts
not properly supported by the record. Brasic v. Heinemann’s
Inc., 121 F.3d 281, 284 (7th Cir. 1997).

DISCUSSION

Unlawful retaliation occurs when an employer takes an
adverse employment action against an employee for opposing
impermissible discrimination. Rogers v. City of Chicago, 320
F.3d 748, 753 (2003); 42 U.S.C. § 2000e-3. To overcome summary
judgment, the plaintiff may establish a prima facie case of
retaliation using either the direct method or the direct method
of proving discrimination. Stone v. City of Indianapolis Public
Utilities Division, 281 F.3d 640, 644 (7th Cir. 2002). Under the
direct method, the plaintiff must present direct evidence of (1)

a statutorily protected activity; (2) an adverse employment



|

it unreasonable, for employees to experience delays before large
bureaucracies accommodate their administrative needs. More
importantly, Mr. Palmer was not a brand-new employee. He had
worked at the VA for over thirty years. If he wanted his name
added to the phone directory, he likely knew whom to contact. The
same goes for Mr. Palmer’s complaints regarding the staff
meetings. Mr. Palmer admits that he did not ask to be included in
staff meetings. Mr. Palmer’s absence from the meetings, like his
absence from the phone directory, seems to be the result of his
own inaction, and not the result of an adverse employment action.

Furthermore, Mr. Palmer's feelings of isolation, ostracism,
and humiliation does not necessarily evidence adverse employment
actions. Not everything that makes an employee unhappy is an
actionable adverse action. Cullom v. Brown, 209 F.3d 1035, 1041
(7th Cir. 2000). Nor can Mr. Palmer establish that his colleagues’
alleged indifference to his deteriorating mental condition
amounted to an adverse employment action. General hostility does
not qualify as actionable adverse employment actions. Hilt-Dyson,
282 F.3d at 466. And Mr. Palmer has certainly not demonstrated
that any alleged hostility was so serve and pervasive as to be
actionable. Id. at 466 (general hostility and comments do not
qualify as adverse employment actions unless the hostility was
severe and pervasive).

Lastly, Mr. Palmer’s remaining complaint regarding his



Minule Order Form (06867)

ty United States District Court, Northern District of Illinois

LZ]

ike of Assigned Judge Sitting Judge if Other

Arlander Keys
or Magistrate Judge than Assigned Judge
CASE NUMBER 02 C 5208 DATE 4/16/2004

CASE Foster Palmer vs. Anthony J. Principi et al.
TITLE

[In the following box (a) indicate the party filing the motion, e.g,, plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

of the motion being presented.)

ay

MOTION:

DOCKET ENTRY:

QQ) oOo Filed motion of [ use listing in “Motion” box above.]

(2) o Brief in support of motion due

@) o Answer brief to motion due___. Reply to answer brief due

(4) im} Ruling/Hearing onset for at

(5) a Status hearingfheld/continued to] [set for/re-set for]on__——ssetfor__—_att

(6) Oo Pretrial conference[held/continued to] {set for/re-set for]on__——ssetfor__——sat_—

(7) oO Trial[set for/re-set for]on saat

(8) a [{Bench/Jury trial} [Hearing] held/continued toa.

(9) o This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
COFRCP4(m) OlLocat Rule 41,1 CFRCP41(a\(1) O FRCP41(a)(2).

ao ff [Other docket entry) | Memorandum Opinion and Order entered. Defendant Veterans Affairs’

Motion for Summary Judgment [#23] is hereby granted. AK

a [For further detail see order attached to the original minute order.]

No notices required, advised in open court.
2

No notices required. number of notices

Notices mailed by judge’s staff.
Notified counsel by telephone.

Docketing to mail notices.

Mail AO 450 form
Copy to judge/magistrate judge.
courtroom
FIL a deputy’s
initials
Date/time received in
central Clerk's Office naling deputy initials



position was created to accommodate Mr. Palmer’s unannounced and
unexpected arrival at the VA’s door after he had agreed to retire.
To ascribe retaliatory motives to the VA’s accommodation is
illogical. Moreover, if Mr. Palmer was not restored to his
previous position, it was not because the VA sought to retaliate
against him, rather it was because Mr. Palmer’s former post had
been relocated to Washington D.C. Thus, because Mr. Palmer cannot
demonstrate the requisite causal connection between his protected
activity and the alleged adverse employment action, his
retaliation claim fails for another reason.

This same flaw surfaces if Mr. Palmer’s case is considered
under the indirect method of proving retaliation. Assuming,
arguendo, that Mr. Palmer could establish a prima facie case of
retaliation using the indirect method’, Mr. Palmer has offered no
evidence to rebut the VA’s noninvidious reasons for the adverse
employment action. Stone, 281 F.3d at 644 (the employer is
entitled to summary judgment despite the employee’s prima facie
case if the employer presents unrebutted evidence of a
noninvidious reason for the adverse action). The VA gave Mr.
Palmer the new position to accommodate his unexpected return. And

the VA could not restore Mr. Palmer to his prior position because

*This is a particularly generous assumption, considering Mr.
Palmer’s inability to articulate an adverse employment action,
coupled with the fact that Mr. Palmer has no evidence that he was
treated less favorably than similarly situated employees who did
not engage in statutorily protected activity.

11



the VA intentionally delayed paying him his settlement monies. It
is unclear whether Mr. Palmer seeks to characterize the VA’s
alleged delay as an additional adverse employment action. If he
does, the characterization is without merit. The vast majority of
incidents referenced that relate to the VA’s alleged delay, regard
negotiations and discussions that occurred prior to the Settlement
Agreement’s payment deadline. Mr. Palmer was apparently anxious to
get his money, as he began demanding payment immediately after
signing the Settlement Agreement. But the VA was certainly under
no obligation to honor Mr. Palmer’s immediate demands, and it
strains the imagination to understand how the VA’s refusal to
honor Mr. Palmer’s premature requests constituted an adverse
employment action. Accordingly, this alternate position is
untenable. Thus, because Mr. Palmer cannot demonstrate an adverse
employment action, his retaliation claim must fail.

For the sake of completeness, the court will briefly address
some of the other problems with Mr. Palmer’s case. As stated
above, under the direct method of proving retaliation, a plaintiff
must demonstrate a causal connection between the adverse
employment action and the protected activity. Stone, 281 F.3d at
644. Mr. Palmer cannot make this showing. Assuming, arguendo,
that Mr. Palmer’s changed employment conditions constituted an
adverse employment action, Mr. Palmer cannot demonstrate that his

protected activity precipitated the new position. Rather, the new

10



prior authority. Mr. Palmer claims that these changed conditions
caused him to feel isolated, ostracized, and humiliated. Mr.
Palmer, therefore, concludes that he suffered a materially adverse
employment action. The court disagrees.

Many of Mr. Palmer’s complaints constitute mere
inconveniences, not adverse employment actions. Hilt-Dyson v.
City of Chicago, 282 F.3d 456, 465 (7th Cir. 2002) (material
adverse employment action is something more than a mere
inconvenience). Some plainly trivial examples include Mr.
Palmer’s dissatisfaction with his parking space, office supplies,
and malfunctioning computer. None of these complaints
significantly altered the terms and conditions of Mr. Palmer’s job
and are, therefore, not actionable. Griffin v. Potter, 356 F.3d
824, 829 (7th Cir. 2004) (adverse employment action is one that
significantly alters the terms and conditions of the employee’s
job).

Mr. Palmer’s more substantive complaints also do not amount
to adverse employment actions. These complaints include Mr.
Palmer’s allegations about his office location, absence of his
name from the phone directory, and lack of invitations to staff
meetings. While it is true that Mr. Palmer’s new office was
located in a separate building, the building was a mere sixty
yards away from his former office. Regarding the absence of his

name from the agency phone directory, it is not uncommon, nor is


; —

,

returned to the VA and announced that he wished to continue
working.

To accommodate Mr. Palmer’s unexpected return, the VA
created a temporary position - that of liaison between the NAC
and the VA’s Washington D.C. business services office.! Although
the job paid the same salary as his previous post, Mr. Palmer was
not pleased with his new position. He complains that the VA put
him in a separate building, apart from his former NAC colleagues.
Mr. Palmer also complains that, in contrast to his former post,
he did not have a dedicated parking space, his name was not
listed in the agency phone directory, and he did not have a
properly functioning computer or adequate office supplies. Mr.
Palmer further claims that his supervisor did not invite him to
regular staff meetings, and that VA employees generally ignored
him. Mr. Palmer says that these circumstances caused him to feel
ostracized, degraded, and humiliated.

Meanwhile, the parties continued negotiating payment of the
settlement monies. After considerable discussion, the parties
executed an addendum to the Settlement Agreement wherein the VA
agreed to make payment on a date certain and Mr. Palmer agreed to
retire. Despite this resolution, Mr. Palmer filed another ERO

complaint, alleging that the VA’s decision to place him in the

The VA did not restore Mr. Palmer to his prior position
because the department had been relocated to Washington, D.C.

3



TMeeeee, OO OE

5

Shortly before Mr. Palmer became chief, a VA employee
brought sexual harassment charges against him. Upset by the VA’s
subsequent investigations, Mr. Palmer filed a series of Equal
Employment Opportunity (EEO) complaints against the VA, claiming
that the VA was using the sexual harassment investigations to
force him into an early retirement.

In March 1996, Mr. Palmer and the VA agreed to mediate his
EEO complaints. With the assistance of counsel, the parties
reached a settlement agreement whereby Mr. Palmer agreed to
retire by June 1, 1996 or no later than November 1, 1996 if Mr.
Palmer secured temporary assignment outside the NAC (the
Settlement Agreement). The Settlement Agreement also provided
that, upon reasonable documentary proof of damages and expenses,
the VA would pay Mr. Palmer a lump sum payment of $75,000 by
January 31, 1997. After executing the Settlement Agreement, the
VA placed Mr. Palmer on paid leave until June 1, 1996. Mr.
Palmer then decided to procure temporary assignments outside the
NAC, rather than elect the June 1 retirement date.

Soon after signing the Settlement Agreement, Mr. Palmer
began demanding that the VA pay him the agreed upon $75,000.
Various issues arose over the adequacy of Mr. Palmer’s medical
documentation. The VA claims that, despite the parties’
disagreements, it hoped to meet the January 31, 1997 deadline.

But Mr. Palmer was not satisfied. So, on November 4, 1996, he



UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS a
EASTERN DIVISION \

ook
FOSTER PALMER,
Plaintiffs,

Case No. 02 C 5208

ANTHONY J. PRINCIPI, Secretary of
Veterans Affairs, Department of
Veterans Affairs,

Defender,

Magistrate Judge
Arlander Keys

Defendant.

MEMORANDUM OPINION AND ORDER

Plaintiff, Foster Palmer, brought this Title VII action
against Defendant, Anthony J. Principi, Secretary of Veterans
Affairs (the VA). The VA now moves for summary judgment. For the
reasons below, the court grants the VA’s motion.

FACTS

This lawsuit arises out of the circumstances surrounding
Foster Palmer's retirement from the VA after thirty years of
service. During his tenure, Mr. Palmer held various positions
and titles. In 1994, Mr. Palmer became chief of the Business
Services Office of the VA’s National Acquisition Center (NAC).
As chief, Mr. Palmer was responsible for marketing VA contracts
to other government agencies. Mr. Palmer also had the authority

to bind the VA to contracts for goods and services.

3;



the position had been relocated to Washington, D.C. Because the
VA's reasons are legitimate, nondiscriminatory, and unrebutted,
Mr. Palmer’s retaliation claim fails for yet another reason.
CONCLUSION
IT IS HEREBY ORDERED THAT, for the reasons set forth
above, Defendants’ Motion for Summary Judgment be, and the same
hereby is, GRANTED.

DATED: April 16, 2004 ENTER:

Qudewon Keys.

ARLANDER KEYS
United States Magistrate Judge

12