Robert Formella v. Megan J. Brennan , 817 F.3d 503 ( 2016 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 15-1402
ROBERT FORMELLA,
Plaintiff-Appellant,
v.
MEGAN J. BRENNAN, Postmaster
General, United States Postal Service,
Defendant-Appellee.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 13 C 3032 — Virginia M. Kendall, Judge.
ARGUED JANUARY 22, 2016 — DECIDED MARCH 10, 2016
Before BAUER, FLAUM, and HAMILTON, Circuit Judges.
BAUER, Circuit Judge. Plaintiff-appellant, Robert Formella
(“Formella”), appeals the district court’s grant of summary
judgment in favor of defendant-appellee, the Postmaster
General of the United States Post Office (“USPS”). Formella
sued USPS for employment discrimination based on race
and age, in violation of Title VII of the Civil Rights Act of 1963,
42 U.S.C. §§ 2000e-2 and 2000e-3 (“Title VII”), and the Age
2 No. 15-1402
Discrimination in Employment Act of 1967, 29 U.S.C. § 621,
et seq. (“ADEA”), respectively, and retaliation in violation of
Title VII. For the following reasons, we affirm the district
court’s decision.
I. BACKGROUND
Formella, a white male, worked for USPS for 31 years.
He became a postal police officer in 1998 and was promoted
to sergeant in 2003. The USPS police officers were assigned
to one of three shifts, called “tours.” Tours 1 and 3 had the
opportunity for “premium pay” for work performed on
Sundays and after 6:00 p.m. As a sergeant, Formella supervised
six to ten officers on his tour, created schedules, responded to
incidents, and dispatched officers.
In 2009, Formella decided to retire and submitted his
paperwork to USPS. At that time, he was on tour 1. However,
Formella changed course and decided not to retire. He claimed
USPS would not allow him to withdraw his retirement
paperwork, and he filed an administrative appeal. The parties
reached a settlement that allowed Formella to return to work,
but on tour 2, which had no opportunity for premium pay.
According to Formella, he repeatedly informed his supervi-
sors that he wanted to transfer off tour 2 and onto either tours
1 or 3. He knew Sergeant Loretta Williams (“Sergeant
Williams”) was planning to retire, but Formella did not request
to be transferred to Sergeant Williams’ position because he
thought her position had the same work days and pay as his
position. In April 2011, Inspector in Charge Thomas Brady
(“Brady”), who is white, posted a vacancy announcement for
the supervisor position created by Sergeant Williams’ retire-
No. 15-1402 3
ment. Only when the job was posted did Formella realize that
the position was eligible for premium pay. Formella contends
that he would earn $7,000.00 more per year in premium pay
on tour 3 than on tour 2.
Upon seeing the posting, Formella told his direct supervi-
sor, Captain Douglas Williams (“Captain Williams”), who is
African-American, that he was interested in the position.
Captain Williams inquired up the chain of command to see
if Formella could transfer “non-competitively” into the
position. He told Formella he could apply for a non-competi-
tive transfer or attempt to compete for the position. Formella
then asked Brady if he could transfer non-competitively into
the position. Brady informed Formella that he would not
approve the non-competitive transfer because the position
posting had already been published and Formella had not
asked Captain Williams for the position prior to the posting. It
is undisputed that Brady had the discretion to withdraw the
posting and approve Formella’s non-competitive transfer.
Ultimately, Formella competed for the position against two
other officers, Officer Fields and Officer Brown, both of whom
are African-American and over 40 years old. Brady inter-
viewed the three applicants, asking them all the same ques-
tions and scoring their responses on a numerical scale. Based
on the interviews, Brady hired Officer Fields. According to
Brady, he did not choose Formella because he had the impres-
sion that Formella felt entitled to the position, as throughout
the interview Formella repeated the phrase “RHIP,” which
stands for “rank has its privileges.” Brady also indicated that
Formella was not prepared for the interview, did not answer
questions completely or correctly, and only wanted the
4 No. 15-1402
position due to the potential increase in pay. Brady felt Officer
Fields presented better in the interview, as Officer Fields had
complete and correct answers to questions and was well
prepared.
After finding out he was not selected for the position,
Formella filed an informal EEO complaint with USPS on July 4,
2011. Formella alleged that Brady had discriminated against
him because of his race and age. In his formal complaint, filed
in October 2011, Formella alleged that Captain Williams
retaliated against him for filing his EEO complaint, in addition
to alleging the employment discrimination on the part of
Brady. Formella complained of various activities on the part of
Captain Williams that constituted the retaliation, including:
Captain Williams instituted a new policy where salaried
sergeants were required to punch a time clock; Captain
Williams paid more attention to Formella’s work, requiring
him to make grammatical and spelling corrections to his
reports; during a staff meeting, Captain Williams warned
Formella about his use of profanity; and Captain Williams gave
Formella contradictory instructions regarding attendance
forms.
In December 2012, Formella filed a second informal EEO
complaint regarding additional retaliatory acts on the part of
Captain Williams. Formella complained that the following
additional activities constituted retaliation: Captain Williams
refused to accept Formella’s doctor’s note clearing him to
return to work after a sick leave, as the doctor’s note did not
comply with USPS requirements; when Formella returned to
work after the sick leave, Captain Williams misclassified a
week as leave without pay, even though Formella had used his
No. 15-1402 5
accrued sick leave for those forty hours; and Captain Williams
instructed Formella to attend a management meeting in his
police uniform, but when Formella arrived at the meeting and
was the only one in uniform, Captain Williams “humiliated”
him by ordering him to change into street clothes and then
informing the meeting attendees that street clothes were to be
worn to these meetings.
On January 17, 2013, USPS issued its Final Agency Decision
(the “Decision”) and denied Formella’s claims of discrimina-
tion and retaliation. In rendering the Decision, USPS also
considered two additional acts of retaliation as alleged by
Formella: Captain Williams revoked Formella’s ability to use
the “ePACS” system to program access badges; and Captain
Williams singled out Formella of all sergeants to perform
carrier safety checks. Formella filed suit in federal court within
90 days of the Decision, asserting claims for race discrimination
and retaliation in violation of Title VII and age discrimination
in violation of the ADEA.
USPS moved for summary judgment, and the district
court granted the motion. With regard to his reverse racial
discrimination claim, the district court found that Formella
failed to establish a prima facie case because he failed to present
background circumstances to show that Brady (who is white)
was inclined to discriminate against Formella (who is also
white). The district court also found that there was nothing
“fishy” about the fact that Formella was the only white
applicant. Also, the district court found Formella failed to
identify a similarly situated employee who was treated more
favorably. The district court also found that even if Formella
6 No. 15-1402
had made out a prima facie case, USPS gave non-discriminatory
reasons for its actions, and Formella failed to show pretext.
With regard to Formella’s ADEA claim, the district court
found Formella failed to identify a similarly situated employee
who was treated more favorably, thereby failing to establish a
prima facie case of age discrimination. Further, Formella failed
to show pretext to defeat USPS’s non-discriminatory reasons
for its actions.
With regard to Formella’s retaliation claims, the district
court found that Formella failed to show that any of the alleged
retaliatory actions would have dissuaded a reasonable em-
ployee from engaging in protected activity. Additionally, the
district court found that only one of the activities of which
Formella complained, Captain Williams’ rejection of Formella’s
doctor’s note, could possibly qualify as an adverse employ-
ment action. However, the district court found the timing
between the rejection of the doctor’s note and the filing of his
EEO complaint (a period of ten months), was insufficient to
establish causation under the direct method of proof. Under
the indirect method of proof, Formella failed to identify a
similarly situated employee.
II. DISCUSSION
We review the district court’s granting of the motion for
summary judgment de novo and construe all facts and reason-
able inferences in Formella’s favor. Good v. Univ. of Chi. Med.
Ctr., 673 F.3d 670, 673 (7th Cir. 2012) (citation omitted).
Summary judgment is proper when “the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ.
No. 15-1402 7
P. 56(a). Because Formella failed to demonstrate a genuine
issue of material fact on any of his claims, summary judgment
in favor of USPS was proper.
USPS argues that Formella’s claim regarding the non-
competitive transfer is untimely, but we disagree. Specifically,
USPS argues that Formella’s initial informal EEO complaint
was not filed within 45 days of Brady’s denial of Formella’s
non-competitive transfer request.
Federal government employees may bring Title VII and
ADEA employment discrimination claims in federal court only
after they have timely exhausted their administrative remedies.
42 U.S.C. § 2000e-16c; Ester v. Principi, 250 F.3d 1068, 1071 (7th
Cir. 2001) (citations omitted); McGinty v. United States Dept. of
the Army, 900 F.2d 1114, 1116–17 (7th Cir. 1990). Federal
employees must obtain EEO counseling or file an informal
complaint within 45 days of the alleged discriminatory action.
29 C.F.R. § 1614.105(a)(1).
“[T]he doctrines of waiver, estoppel and equitable tolling”
apply to the limitations provisions of employment discrimina-
tion claims. Ester, 250 F.3d at 1071 (citation omitted). “When an
agency decides the merits of a complaint, without addressing
the question of timeliness, it has waived a timeliness defense in
a subsequent lawsuit.” Id. at 1071–72.
USPS has waived any timeliness arguments with regard
to the denial of the non-competitive transfer. In the Decision,
USPS addressed Formella’s claim pertaining to the denial
of the non-competitive transfer on the merits and did not
address timeliness. Therefore, any timeliness arguments by
8 No. 15-1402
USPS with regard to the non-competitive transfer claim are
waived.
Formella argues that he has established a prima facie case
of reverse racial discrimination based upon two actions of
Brady: (1) his refusal to allow Formella to transfer non-compet-
itively to the tour 3 position; and (2) his selection of Officer
Fields, who is “less qualified” and “non-white,” over Formella
for the tour 3 position. Formella has proceeded under the
indirect proof, burden-shifting method enunciated in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), and
as modified by Mills v. Health Care Service Corp., 171 F.3d 450,
457 (7th Cir. 1999), for reverse racial discrimination cases.
To survive summary judgment, Formella must show that:
(1) “background circumstances exist to show an inference that
the employer has reason or inclination to discriminate invidi-
ously against whites or evidence that there is something ‘fishy’
about the facts at hand”; (2) he was meeting his employer’s
legitimate performance expectations; (3) he suffered an adverse
employment action; and (4) he was treated less favorably than
similarly situated individuals who are not members of his
protected class. Ballance v. City of Springfield, 424 F.3d 614, 617
(7th Cir. 2005) (citations and quotations omitted); see also Good,
673 F.3d at 678 (citing Phelan v. City of Chicago, 347 F.3d 679,
684–85 (7th Cir. 2003); Mills, 171 F.3d at 455; and Peele v.
Country Mut. Ins. Co., 288 F.3d 319, 329 (7th Cir. 2002)). If
Formella meets his burden and establishes a prima facie case,
the burden shifts to USPS to “provide a legitimate, nondiscrim-
inatory reason for the [adverse employment] decision.”
Ballance, 424 F.3d at 617 (citations omitted). If USPS meets its
No. 15-1402 9
burden, the burden shifts back to Formella to show the reasons
given by USPS are a pretext for discrimination. Id.While prongs 2 and 3 of a prima facie case for reverse racial
discrimination are met in this case, Formella’s claim fails on
prongs 1 and 4. With regard to prong 2, USPS does not argue
that Formella was not meeting its legitimate performance
expectations. Therefore, it is undisputed that Formella was
meeting USPS’s job expectations.
With regard to prong 3, Formella suffered an adverse
employment action. It is undisputed that USPS offered
premium pay to those officers on tour 3, and by remaining on
tour 2 Formella lost out on $7,000.00 of premium pay per year
that was available on tour 3. When overtime pay or premium
pay is a significant and expected part of an employee’s annual
earnings, denial of such pay may constitute an adverse
employment action. See, e.g., Henry v. Milwaukee Cty., 539 F.3d
573, 585–86 (7th Cir. 2008) (citation omitted); Lewis v. City of
Chicago, 496 F.3d 645, 653–54 (7th Cir. 2007). Taking all evi-
dence and reasonable inferences in Formella’s favor, we find
that the denial of his non-competitive transfer request and the
hiring of Officer Fields over Formella constitute adverse
employment actions.
However, Formella has waived any arguments with regard
to prong 1. Because Formella is a white male, he is subject to
the reverse discrimination standard outlined in Mills v. Health
Care Service Corp., 171 F.3d 450, 455 (7th Cir. 1999), rather than
the first prong of the McDonnell Douglas test (which is being a
member of a protected racial class). McDonnell Douglas, 411
U.S. at 802. In his opposition to USPS’s motion for summary
10 No. 15-1402
judgment, Formella simply stated that he “was a member of
the protected classes,” as he was “the only white candidate for
the position.” (Doc. 44, at 2–3). Formella failed to present any
argument in his opposition to USPS’s motion regarding any
background circumstances showing USPS or Brady (who is
white) had a reason to discriminate against whites or anything
“fishy” about the facts of his case. Since he failed to address
this reverse discrimination standard in opposing USPS’s
motion for summary judgment, Formella has waived these
arguments on appeal. Smith v. Bray, 681 F.3d 888, 902 (7th Cir.
2012) (citation omitted).
In addition, Formella has failed to sufficiently identify
similarly situated employees who are non-white for compari-
son purposes to meet prong 4. “Similarly situated employees
must be directly comparable to the plaintiff in all material
respects.” Good, 673 F.3d at 675 (citations and quotations
omitted). The goal of the comparison analysis is to “eliminate
other possible explanatory variables, ‘such as differing roles,
performance histories, or decision-making personnel, which
helps isolate the critical independent variable’—discriminatory
animus.” Id. (quoting Humphries v. CBOCS West, Inc., 474 F.3d
387, 405 (7th Cir. 2007), aff’d, 553 U.S. 442 (2008)).
With regard to Brady’s denial of Formella’s non-competi-
tive transfer, Formella proffers Sergeant Latonya Wyatt
(“Sergeant Wyatt”), an African-American woman, as a simi-
larly situated comparator. In his separate statement of addi-
tional facts, Formella states: “In 2009, Captain Williams
allowed Sergeant Wyatt (black) to transfer tours non-competi-
tively, and she benefitted financially from the tour change.”
No. 15-1402 11
(Doc. 45, at 12, ¶ 20). In support of this fact, Formella cites to
roughly 11 lines of his own deposition testimony. Id.Other than a brief passage from his own deposition
testimony, as to which he lacked personal knowledge,
Formella has submitted no evidence to establish Sergeant
Wyatt as a similarly situated comparator. Formella has
presented no evidence to indicate whether Sergeant Wyatt
requested the transfer or whether she was transferred unilater-
ally by a supervisor.1 In fact, Captain Williams stated in his
affidavit to USPS in response to Formella’s EEO complaint that
Sergeant Wyatt did not request a non-competitive transfer and
that he and his supervisor unilaterally transferred her to
ensure a sergeant on every shift. (Doc. 34–5, at 37).
Also, Formella has presented no evidence as to whether a
vacancy announcement was posted prior to Sergeant Wyatt’s
transfer. Although Formella testified at his deposition that
Sergeant Wyatt requested a non-competitive transfer, he
admitted that a vacancy posting had not been published prior
to her transfer. But in Formella’s situation, a vacancy posting
had already been published before he requested his non-
competitive transfer. (Doc. 45–1, at 36, ln. 10–14).
Whether a vacancy had been posted prior to requesting a
non-competitive transfer is a crucial detail for this analysis. It
is undisputed that Brady had the discretion to withdraw the
1
We note that Formella submitted an excerpt from Sergeant Wyatt’s
deposition transcript after oral argument in this case. We cannot consider
this evidence in rendering our decision because this evidence is not
included in the record. Fed. R. App. P. 10(a); Henn v. Nat’l Geographic Soc.,
819 F.2d 824, 831 (7th Cir. 1987).
12 No. 15-1402
posting and approve Formella’s non-competitive transfer. In
other words, the only way Formella could have transferred
non-competitively to the position were if Brady exercised his
discretion to withdraw the vacancy posting and approve the
transfer. In Sergeant Wyatt’s situation, no vacancy posting had
been published prior to her request to transfer; thus, Brady was
not faced with having to choose whether to exercise his
discretion to pull the vacancy posting and approve the transfer.
Therefore, Sergeant Wyatt and Formella were in two com-
pletely different administrative situations.
Given this evidence, Sergeant Wyatt is not a true compara-
tor for Formella on the issue of the non-competitive transfer
denial. Because Formella has failed to present a similarly
situated employee for comparison, he has failed to make a
prima facie case of reverse racial discrimination with regard to
the denial of his non-competitive transfer request.
With regard to Brady’s choice of Officer Fields over
Formella for the position, the only evidence Formella offered
to show racial discrimination was that Officer Fields was “less
qualified” and that Formella was a sergeant and Officer Fields
was not. But, it is undisputed that Brady found all three
candidates, including both Formella and Officer Fields, to be
qualified for the position. It is undisputed that Formella did
not know the answers and provided incomplete answers to
some interview questions. It is undisputed that when Brady
asked Formella what made him the best candidate, Formella
responded that he would benefit financially from the transfer.
It is undisputed that Formella told Brady during the interview
that he intended to return to school and work in the firearms
industry. It is undisputed that Formella repeatedly said
No. 15-1402 13
“RHIP” (“rank has its privileges”) during the interview, which
projected an attitude of entitlement. It is undisputed that
Officer Fields scored highest on the interview, as he was well-
prepared and provided appropriate, complete, and correct
answers to the interview questions. Based on this undisputed
evidence, Formella and Officer Fields are not sufficiently
similarly situated for comparison purposes.
Despite this undisputed evidence, Formella nevertheless
argues that Brady “rigged” the scoring of the interviews to
result in a higher score by Officer Fields. Other than his own
unsupported deposition testimony, Formella has presented no
admissible evidence to support this argument. Such specula-
tion on the part of Formella “cannot be used to defeat a motion
for summary judgment.” Ballance, 424 F.3d at 620 (citation
omitted). Formella failed to present any evidence tending to
show why his white superior (Brady) would discriminate
against Formella, who is also white, based on his race. Formella
failed to present any evidence regarding Officer Fields’
qualifications, education, training, or performance history.
Simply put, Formella has not shown reverse racial discrimina-
tion.
Moreover, even if Formella had met his burden and
established a prima facie case of reverse racial discrimination
with regard to the hiring of Officer Fields over him, he cannot
show that Brady’s reasons for the hiring were pretextual.
“Pretext requires more than showing that the decision was
mistaken, ill considered or foolish, and so long as the employer
honestly believes those reasons, pretext has not been shown.”
Ballance, 424 F.3d at 617 (citation, quotation, and brackets
omitted). In short, Formella has the burden to show Brady’s
14 No. 15-1402
reasons for choosing Officer Fields over Formella constitute
lies. Id. (citation omitted).
Formella has not carried his burden. As referenced above,
the details pertaining to both Formella’s and Officer Fields’
performance in the interview are undisputed. Based on this
undisputed evidence, Officer Fields performed better in the
interview than Formella. Better performance in an interview is
unquestionably a legitimate, nondiscriminatory basis to hire
one candidate over another. See, e.g., Healy v. City of Chicago,
450 F.3d 732, 742 (7th Cir. 2006); Blise v. Antaramian, 409 F.3d
861, 867–68 (7th Cir. 2005).
Because Formella failed to establish a prima facie case of
reverse racial discrimination, summary judgment in favor of
USPS was proper.
Formella also argues that Brady denied his non-competitive
transfer and selected Officer Fields over him due to Formella’s
age. The ADEA prohibits employment discrimination against
people over 40 years old. 29 U.S.C. §§ 623(a)(1), 631(a). How-
ever, Formella has waived his ADEA claims by failing to
develop any arguments in his opposition to USPS’s motion for
summary judgment and by failing to present fully developed
arguments in his opening appellate brief. See, e.g., Smith, 681
F.3d at 902 (citation omitted); LaBella Winnetka, Inc. v. Vill. of
Winnetka, 628 F.3d 937, 943 (7th Cir. 2010) (citation omitted);
Garg v. Potter, 521 F.3d 731, 736 (7th Cir. 2008) (citations
omitted). In his summary judgment opposition, Formella
simply lumps in his age discrimination claim with his race
discrimination claims. He presented no facts or evidence
pertaining to age in his separate statement of additional facts.
No. 15-1402 15
In his opening appellate brief, Formella simply redirects us to
the arguments he made regarding his race discrimination
claims. While the analysis is similar for an age discrimination
claim and a race discrimination claim, Formella has developed
no independent age discrimination argument in either the
district court or here supporting his ADEA claims. Thus, these
arguments are waived.
Lastly, Formella argues that Captain Williams retaliated
against him after he filed his informal EEO complaints.
Title VII prohibits an employer from discriminating against
an employee “because [the employee] has opposed any
practice made an unlawful employment practice by this
subchapter, or because he has made a charge, testified, as-
sisted, or participated in any manner in an investigation,
proceeding, or hearing under this subchapter.” 42 U.S.C.
§ 2000e-3(a). Title VII’s anti-retaliation provision “covers those
(and only those) employer actions that would have been
materially adverse to a reasonable employee … [such] that the
employer’s actions must be harmful to the point that they
could well dissuade a reasonable worker from making or
supporting a charge of discrimination.” Burlington N. & Santa
Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006).
Similar to employment discrimination claims, an employee
claimant can prove his or her retaliation claim by either the
direct or indirect method of proof. Roney v. Ill. Dept. of Transp.,
474 F.3d 455, 459 (7th Cir. 2007) (citation omitted). Here,
Formella proceeds under both methods. To succeed under
the direct method, Formella “must show evidence that he
engaged in a statutorily protected activity … and as a result,
suffered an adverse action.” Id. (citation omitted). Further,
16 No. 15-1402
under the direct method, Formella “may offer circumstantial
evidence of intentional retaliation, including evidence of
suspicious timing, ambiguous statements, behavior toward or
comments directed at other employees in the protected group,
and other bits and pieces from which an inference of discrimi-
natory intent might be shown.” Boumehdi v. Plastag Holdings,
LLC, 489 F.3d 781, 792 (7th Cir. 2007) (citation omitted). To
succeed under the indirect method, Formella must “show that
after he complained of discrimination, he, and not any other
similarly situated employee who did not complain, was subject
to an adverse action although he was performing up to the
employer’s legitimate job expectations.” Roney, 474 F.3d at 459
(citation omitted). “Failure to satisfy any one element of the
prima facie case is fatal to an employee’s retaliation claim.”
Sublett v. John Wiley & Sons, Inc., 463 F.3d 731, 740 (7th Cir.
2006) (citation and quotation omitted).
First, Formella engaged in a statutorily protected activity.
He filed an informal EEO complaint alleging race and age
discrimination on the part of Brady in denying Formella’s non-
competitive transfer and choosing Officer Fields for the
position. This complaint is a statutorily protected activity. 42
U.S.C. § 2000e-3(a); Boumehdi, 489 F.3d at 792.
The next step in our analysis is to determine whether
Formella suffered an adverse action. Under both methods of
proof, Formella must show that the activity of which he
complains constitutes “an adverse action.” An employment
action is adverse if a reasonable employee would find it
materially adverse such that the reasonable employee would
be dissuaded from engaging in the protected activity. Bur-
No. 15-1402 17
lington N., 548 U.S. at 68 (citations and quotation omitted);
Roney, 474 F.3d at 461 (citation omitted); Nagle v. Vill. of Calumet
Park, 554 F.3d 1106, 1119 (7th Cir. 2009) (citation omitted). To
be adverse, the action must “produce[] an injury or harm.”
Burlington N., 548 U.S. at 67. It must be “significant” and
cannot be “trivial.” Id. at 68. “[N]ormally petty slights, minor
annoyances, and simple lack of good manners” do not consti-
tute adverse employment actions. Id. (citation omitted).
In his opposition to the USPS motion, Formella failed to
argue how any of the actions on the part of Captain Williams
would dissuade a reasonable employee from engaging in
protected activity (in this case, filing the EEO complaints).
Because he failed to present any argument in the district court,
any such arguments are waived on appeal. See, e.g., Smith, 681
F.3d at 902 (citation omitted).
Even if the adverse action argument were somehow
preserved for appeal, only one action on the part of Captain
Williams could be construed as adverse. When Captain
Williams rejected Formella’s doctor’s note, Formella was
required to use an additional week of sick leave to obtain a
second doctor’s note. This could dissuade a reasonable
employee from engaging in protected activity, while the other
actions would not. For instance, actions such as having to
punch a time clock pursuant to a newly instituted policy for all
salaried employees, having to make grammatical and spelling
corrections to reports, and being assigned menial work or
other duties are not materially adverse. Formella presented no
evidence that these actions were anything other than trivial,
minor annoyances. See, e.g., Nagle, 554 F.3d at 1119–21 (transfer
18 No. 15-1402
to different position, assignment to undesirable duties, sched-
ule changes, and suspension that was never served found to
not constitute adverse actions); Roney, 474 F.3d at 461–63
(different job assignment, employer’s refusal to create perfor-
mance plan, merit raise not given to employee when employer
did not give such raises to any employees found to not
constitute adverse actions); Dandy v. United Parcel Serv., Inc.,
388 F.3d 263, 275 (7th Cir. 2004) (denial of promotions where
employee not qualified for such promotions and denial of
lateral transfer with same pay and benefits found to not
constitute adverse actions).2
With regard to the rejection of the doctor’s note, Formella’s
retaliation claim fails under both the direct and indirect
methods of proof. Under the direct method, Formella must
show that Captain Williams rejected the doctor’s note because
Formella filed his EEO complaint. Roney, 474 F.3d at 459(citation omitted). Formella failed to present any direct or
circumstantial evidence that the filing of the EEO complaint
was the cause of Captain Williams’ rejection of the doctor’s
note.
Alternatively, Formella argues that the rejection of the
doctor’s note cannot be viewed in isolation, and that all of the
actions on the part of Captain Williams constituted “a pattern
of retaliatory conduct” that culminated in the rejection of the
2
Formella complains of two instances when Captain Williams marked
Formella absent without leave. However, these timekeeping errors were
corrected and Formella received payment for that time. Thus, neither error
constitutes an adverse action. Rhodes v. Ill. Dept. of Transp., 359 F.3d 498, 505
(7th Cir. 2004).
No. 15-1402 19
doctor’s note. An employee may weave together a pattern of
many different actions which together would constitute
circumstantial evidence of discrimination, such that a reason-
able jury could find a causal connection between the protected
activity on the part of the employee and the retaliatory conduct
on the part of the employer. Malin v. Hospira, Inc., 762 F.3d 552,
558–59 (7th Cir. 2014); Boumehdi, 489 F.3d at 792 (citation
omitted). However, a reasonable jury could not find a causal
connection between the filing of Formella’s informal EEO
complaint and the activity of Captain Williams, as Formella’s
proffered pattern does not support a reasonable inference of
retaliatory intent.
Formella’s reliance on Malin and Boumehdi is misplaced;
those two cases are factually distinguishable from Formella’s
case. In Malin, the employee was unjustifiably passed over
numerous times for promotions and effectively demoted by the
same supervisor who outwardly opposed her filing of a sexual
harassment complaint. Malin, 762 F.3d at 558–59, 560. The
supervisor who opposed her sexual harassment complaint
controlled all raises and promotions, and single-handedly
stalled the employee’s career. Id. In Boumehdi, the employee
received an unjustified negative performance review and was
repeatedly shorted on her pay after making a complaint to the
human resources department about sexual harassment on the
part of her supervisor. Boumehdi, 489 F.3d at 793. Also, the
supervisor repeatedly referenced the employee’s complaint in
a derogatory manner when speaking with her. Id.Here, there is no direct or circumstantial evidence that
Captain Williams’ rejection of the doctor’s note, or any of his
20 No. 15-1402
other actions, were a result of Formella’s filing of the EEO
complaints. Additionally, Formella has not presented evidence
that establishes a causal connection between any alleged
discrimination by Brady and the alleged retaliation by Captain
Williams, or as between the filing of the EEO complaint and
Captain Williams’ actions. Taken individually or cumulatively,
the actions of which Formella complains do not support a
reasonable inference of retaliatory intent.
Finally, Formella’s retaliation claim also fails under the
indirect method of proof because Formella failed to proffer any
employees who are similarly situated for comparison pur-
poses. See Roney, 474 F.3d at 459 (citation omitted).
Therefore, summary judgment in favor of USPS on For-
mella’s retaliation claims was proper.
III. CONCLUSION
For the foregoing reasons, the decision of the district court
is AFFIRMED.