Wells v. Gates

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-1358
MICHAEL E. WELLS,
Plaintiff - Appellant,
v.
ROBERT M. GATES, Secretary of Defense,
Defendant - Appellee.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Roger W. Titus, District Judge. (8:07-
cv-00619-RWT)
Argued: March 26, 2009 Decided: July 10, 2009
Before MOTZ and AGEE, Circuit Judges, and Thomas D. SCHROEDER,
United States District Judge for the Middle District of North
Carolina, sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: Lenore Cooper Garon, GEBHARDT & ASSOCIATES, LLP,
Washington, D.C., for Appellant. Jason Daniel Medinger, OFFICE
OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for
Appellee. ON BRIEF: Myrrel C. Hendricks, GEBHARDT & ASSOCIATES,
LLP, Washington, D.C., for Appellant. Rod J. Rosenstein, United
States Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael E. Wells appeals the district court’s grant of
summary judgment in favor of the Department of Defense (“DOD”)
on his claims of retaliation, in violation of Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e to
2000e-17 (“Title VII”), and hostile work environment, in
violation of the Age Discrimination in Employment Act of 1967,
as amended, 29 U.S.C. §§ 621-34 (“ADEA”). For the reasons
explained below, we affirm.
I.
Wells was an Industrial Security Specialist with the DOD’s
Defense Security Service (“DSS”) for almost sixteen and one-half
years, until his retirement in 2008. In that position, he
performed various national security management functions, such
as inspecting defense contractor facilities and operations for
compliance with federal regulations on the handling of
classified documents. Wells was born on February 20, 1948,
putting him at age fifty-seven during most of the conduct
relevant to his claims.
From 2001 through 2008, Wells’ supervisor was Field Office
Chief Horace Bearzi. By all accounts, Wells and Bearzi had what
can best be described as a less than cordial working
relationship. Although Wells and Bearzi had been at loggerheads
2
for years, the conduct giving rise to Wells’ claims began in
early 2005. Starting in March 2005, Bearzi repeatedly ordered
Wells to stop using the modifier “Senior” with respect to his
title “Industrial Security Specialist” on the grounds that it
was no longer an officially recognized position. Wells failed
to comply. On August 8, 2005, after receiving the approval of
his supervisor, representatives of the DSS Office of Human
Resources and Office of General Counsel, and upper management,
Bearzi issued a Letter of Reprimand (“LOR”) to address Wells’
continued use of the nonexistent title and his signing of
official letters requiring Bearzi’s signature. On August 31,
2005, Bearzi conducted Wells’ mid-year performance review and
noted that he had nine “seriously overdue” security assessment
reports, including some that were 120 days late, even though
such reports were to be completed within thirty days of the
inspection.
On September 1, 2005, Bearzi issued Wells a Letter of
Instruction (“LOI”), again with the concurrence of his
supervisor, representatives of the Office of Human Resources and
Office of General Counsel, and upper management. In the LOI,
Bearzi specifically identified the overdue reports and cited
Wells for improperly storing national security files at home.
To improve Wells’ performance and ensure national security,
Bearzi (1) required Wells to return the files and forbade him
3
from routinely retaining files at home; (2) prohibited him from
writing reports, scheduling activities, or performing any other
duties at home; (3) revoked his authority to park a government-
owned vehicle at home; (4) instructed Wells to brief Bearzi at
the beginning of each day as to his planned activities and at
the end of each day as to his accomplished activities; and (5)
withdrew approval of Wells’ compressed work schedule. On that
same day, Wells requested annual leave for the following three
weeks, which Bearzi approved.
The next day, September 2, 2005, Wells contacted a
counselor of the DSS Office of Diversity Management – its Office
of Equal Employment Opportunity (“EEO”). On September 21, he
went out on sick leave, and approximately two weeks later he
canceled other previously scheduled leave (for an annual hunting
trip) because, he said, a check-up revealed potentially serious
health issues. He filed a formal EEO complaint on September 30,
2005, alleging that the LOR and LOI were retaliatory and
claiming that he was subject to a hostile work environment. 1
When his annual leave was about to expire, Wells requested
additional sick leave through December 2, 2005. He based his
1
The EEO summarily rejected the retaliation claim because
Wells had not participated in prior protected conduct and, after
a lengthy investigation, denied the hostile work environment
claim as well.
4
back-to-back requests on vague references to “[p]hysician
imposed medical leave” and cryptic doctor’s notes referring to
his “hypertension, diabetes, hypercholesterolemia, [and]
obesity.” (J.A. 182, 184-87, 191-92.) Bearzi approved each of
the requests. Though allegedly unable to work, however, Wells
was healthy enough to testify at length on behalf of a co-worker
at both an EEOC deposition and a hearing and appeared
unannounced for a departmental meeting at work during which,
according to Bearzi, he said he was “feeling fine.” These
developments contributed to Bearzi’s growing suspicions that
Wells was malingering.
When Wells requested yet again that his sick leave be
extended, this time beyond December 13, 2005, 2 and through
January 20, 2006, Bearzi consulted the Office of Human Resources
and Office of General Counsel. Based on their advice, he asked
Wells to provide further documentation by December 20, 2005, to
substantiate his medical condition. Bearzi noted that Wells had
already missed seventy-two calendar days of work, had not
submitted adequate medical documentation, and had reported
unbidden to work-related activities on three separate occasions.
2
Wells requested annual leave from December 5, 2005,
through December 13, 2005, which was approved by Bearzi. Wells
claimed that this annual leave was for medical reasons.
5
Bearzi cautioned Wells that he could grant no further sick leave
without the requested documentation.
Even though Bearzi reminded Wells of the looming deadline
through e-mails and a telephone call, Wells failed to provide
any documentation. Accordingly, by letter of December 22, 2005,
Bearzi denied Wells any further sick leave.
On December 30, 2005, Wells belatedly submitted further
medical documentation and requested sick leave from December 29,
2005, to January 31, 2006. Unfortunately, Wells’ doctor’s note
stated only that he “[h]as been ill and unable to work from
12/29/05 to 1/31/06.” (J.A. 212.) Based on the advice of the
Office of Human Resources and Office of General Counsel, Bearzi
again denied the sick leave request and asked for further
medical documentation. On January 27, 2006, Wells submitted a
doctor’s note indicating that he was suffering from intestinal
bleeding, which Bearzi relied on to grant sick leave as of
February 1, 2006.
On January 24, 2006, Wells again contacted an EEO
counselor. He filed a formal complaint on March 14, 2006,
alleging that he suffered disparate treatment, retaliation, and
a hostile work environment. After an extensive investigation,
the EEO concluded that Bearzi’s request for further medical
documentation and denial of sick leave were not related to
Wells’ age or any protected conduct.
6
After more than ten months of continuous leave, dating back
to early September 2005, Wells returned to work in July 2006.
Wells filed the present case on March 12, 2007. His
complaint alleges that the DOD violated the ADEA and Title VII
when, based on his age and in retaliation for his prior
protected EEO activities, it subjected him to (1) retaliation
and disparate treatment; (2) a hostile work environment; and (3)
adverse personnel actions. In lieu of answering, the Government
moved to dismiss, or in the alternative, for summary judgment.
Following several months of briefing and a hearing, the district
court considered all matters of record, including several
hundred pages of the extensive EEO files, denied Wells’ request
for additional discovery on the grounds he failed to articulate
any specific need, and granted the Government summary judgment
on all claims.
Wells timely brings this appeal. We exercise jurisdiction
pursuant to 28 U.S.C. § 1291.
II.
Wells challenges the district court’s grant of summary
judgment on his claims for retaliation and hostile work
7
environment. 3 We review the grant of summary judgment de novo,
“viewing the facts and inferences drawn therefrom in the light
most favorable to the non-moving party.” Baqir v. Principi, 434
F.3d 733, 742 (4th Cir. 2006). Summary judgment is appropriate
only if “there is no genuine issue as to any material fact and .
. . the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(c).
A.
We address first Wells’ retaliation claim. 4 In the absence
of direct evidence, we analyze a Title VII retaliation claim
under the burden-shifting framework set forth in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). Price v.
Thompson, 380 F.3d 209, 212 (4th Cir. 2004). To establish a
prima facie case of retaliation, a plaintiff must demonstrate
that (1) he engaged in protected conduct; (2) his employer took
3
The district court held that the disparate treatment claim
lacked merit because Wells was not subjected to an adverse
employment action and offered no specific evidence that
similarly situated employees had received better treatment.
Wells waives this claim on appeal inasmuch as he only mentions
the term “disparate treatment” in the statement of the issues in
his initial brief and never follows up with any argument. Fed.
R. App. P. 28(a)(9)(A) (requiring the argument section of an
opening brief to contain the “appellant’s contentions and the
reasons for them”); see Edwards v. City of Goldsboro, 178 F.3d
231, 241 n.6 (4th Cir. 1999).
4
The Government does not dispute, and we therefore assume,
that a federal employee may pursue a retaliation claim under
Title VII. Baqir, 434 F.3d at 747 n.16.
8
an adverse employment action against him; and (3) the protected
conduct was causally connected to the adverse action. Ziskie v.
Mineta, 547 F.3d 220, 229 (4th Cir. 2008). To satisfy the
second element, “a plaintiff must show that a reasonable
employee would have found the challenged action materially
adverse, which in this context means it well might have
dissuaded a reasonable worker from making or supporting a charge
of discrimination.” Burlington N. & Santa Fe Ry. Co. v. White,
548 U.S. 53, 68 (2006) (internal quotation marks and citation
omitted). 5 If the plaintiff establishes a prima facie case, the
burden shifts to the employer to demonstrate a legitimate non-
retaliatory reason for the adverse employment action. Baqir,
434 F.3d at 747. If the employer does so, the plaintiff must
prove that this reason was a pretext for retaliation. Id.5
The Government objected in the district court to the
application of the Burlington Northern standard to a Title VII
retaliation case involving a federal employee. Although this
court has applied this standard to federal employees in several
unreported cases, e.g., Caldwell v. Johnson, 289 F. App’x 579,
591 n.13, 592 (4th Cir. 2008) (citing cases), the issue has not
been reached in a reported case. Ziskie, 547 F.3d at 229.
Because the Government has not renewed its objection on appeal,
we assume that the Burlington Northern standard applies for
purposes of this appeal.
9
1.
Wells claims he created a genuine issue of material fact as
to the second element of the prima facie case. 6 Although his
briefing is less than clear, he appears to argue that he
suffered materially adverse employment actions when Bearzi (a)
requested further documentation of his medical condition, (b)
refused to lift his LOI restrictions, and (c) denied a portion
of his requested sick leave.
a.
Wells contends that Bearzi’s December 6, 2005, letter
requesting further medical documentation constituted a
materially adverse employment action. The district court held
that this request was not a materially adverse employment action
because it would not have dissuaded a reasonable employee from
filing an EEO complaint. The district court also noted that
Wells, in fact, was not inhibited and subsequently filed another
EEO complaint.
A materially adverse employment action is one that “well
might have dissuaded a reasonable worker” from engaging in
protected conduct. Burlington N., 548 U.S. at 68 (internal
quotation marks and citation omitted). An employer’s action is
not materially adverse, however, if it amounts to “petty slights
6
For purposes of this appeal, we assume that Wells has met
the first and third elements of the prima facie case.
10
or minor annoyances that often take place at work and that all
employees experience.” 7 Id. at 68. To make that assessment, we
look to the context of the claimed actions. Id. at 69.
We agree with the district court that Bearzi’s request for
further medical documentation was not a materially adverse
employment action. Bearzi’s letter simply advised Wells to
obtain appropriate medical documentation from his physician
before any additional medical leave could be approved. Standing
alone, this request did not impose any disciplinary action on
Wells or otherwise have a tangible employment consequence.
Chaple v. Johnson, 453 F. Supp. 2d 63, 72-73 (D.D.C. 2006)
(holding that “speculation of a future bad act” does not support
a Title VII retaliation claim). Such a request would not
dissuade a reasonable worker from participating in protected
conduct. Moreover, the mere fact that Wells participated in the
protected conduct of testifying at EEOC proceedings and filing
an EEO complaint does not immunize him from a reasonable request
by his employer.
b.
Wells claims next that he suffered a materially adverse
employment action when Bearzi refused to lift the restrictions
7
This anti-retaliation provision “protects an individual .
. . from retaliation that produces an injury or harm.”
Burlington N., 548 U.S. at 67.
11
previously imposed in the LOI. Wells concedes that the initial
imposition of these restrictions predated his participation in
protected conduct and could not serve as the basis of a Title
VII retaliation claim. He claims, however, that he eventually
satisfied the terms of the LOI yet the restrictions remained in
place until he retired two years later.
The record reflects that Bearzi imposed the LOI
restrictions to enable Wells to finish significantly overdue
work, prohibit him from storing national security files at home,
and ensure that he completed his assignments on time. Nothing
in the LOI indicates that Bearzi would lift the restrictions
when the overdue reports were completed or after a fixed period
of time, such as the end of the fiscal year, as Wells argues.
Bearzi instead stated that he intended to lift the LOI when
Wells cleared his backlog and remained current. Wells concedes
that his reports were unfinished when he returned from sick
leave and identifies nothing in the record indicating that he
ever completed them. Thus, the district court correctly
concluded that Bearzi’s refusal to lift these restrictions did
not constitute a materially adverse employment action.
c.
Wells next argues that Bearzi’s denial of his request for
sick leave from December 13, 2005, through January 31, 2006,
constituted a materially adverse employment action. Although
12
the district court acknowledged that Wells raised the denial of
sick leave as a retaliatory act, it concluded, without
specifically addressing the argument, that no materially adverse
employment action existed.
Wells claims that he was entitled to the grant of sick
leave for this six-week period. He asserts that he initially
provided sufficient documentation on December 5, 2005, pointing
to an e-mail, leave request form, and doctor’s note, which
Bearzi denied. Wells also argues that he provided further
documentation in his sick leave request of December 30, 2005,
which Bearzi likewise denied. This six-week period included the
Christmas holidays and ultimately resulted in the loss of more
than $8,000 in gross income, which Wells otherwise would have
been entitled to receive as compensation. The Government argues
that the denial was not a materially adverse employment action
because it did not dissuade Wells from participating in
protected conduct after some of the alleged retaliatory acts.
In Burlington Northern, the Court held that the anti-
retaliation provision “protects an individual . . . from
retaliation that produces an injury or harm.” 548 U.S. at 67.
Loss of compensation could qualify as such an injury or harm.
Id. at 73. Although “the fact that an employee continues to be
undeterred in his or her pursuit of a remedy . . . may shed
light as to whether the actions are sufficiently material and
13
adverse to be actionable,” Somoza v. Univ. of Denver, 513 F.3d
1206, 1214 (10th Cir. 2008), the court ultimately must apply an
objective standard. Burlington N., 548 U.S. at 68, 69; Steele
v. Schafer, 535 F.3d 689, 696 (D.C. Cir. 2008) (stating that the
“materially adverse” standard does not require consideration of
the employee’s “asserted imperviousness to acts of
retaliation”).
Based on the financial impact, we cannot say that a
reasonable worker would not be dissuaded from engaging in
protected conduct by the loss of this compensation from denial
of sick leave. Burlington N., 548 U.S. at 73. To this extent,
we disagree with the conclusion of the district court. For the
reasons that follow, however, it is not dispositive, and we
agree with the district court’s ultimate decision.
2.
We find that the Government has demonstrated a legitimate,
non-retaliatory reason for Bearzi’s actions. An employer may
enforce generally applicable employment policies against its
employees without creating a cause of action for retaliation.
Niswander v. Cincinnati Ins. Co., 529 F.3d 714, 719, 728-29 (6th
Cir. 2008); Hervey v. County of Koochiching, 527 F.3d 711, 725
(8th Cir. 2008); McCann v. Tillman, 526 F.3d 1370, 1376 (11th
Cir. 2008); Gates v. Caterpillar, Inc., 513 F.3d 680, 686-87
(7th Cir. 2008); Joseph v. Leavitt, 465 F.3d 87, 91 (2d Cir.
14
2006); see also Valles-Hall v. Ctr. for Nonprofit Advancement,
481 F. Supp. 2d 118, 155 (D.D.C. 2007) (denying Title VII
retaliation claim where employee failed to provide further
medical documentation to support a sick leave request in
accordance with company policy); Chaple, 453 F. Supp. 2d at 72-
73 (same).
At times pertinent here, the generally applicable
regulation on sick leave documentation was codified at 5 C.F.R.
§ 630.403 (2005). 8 That provision allows an agency to “grant
sick leave only when supported by administratively acceptable
evidence.” 5 C.F.R. § 630.403(a). Although an agency “may
consider an employee’s certification . . . as administratively
acceptable evidence,” the agency “may also require a medical
certificate or other administratively acceptable evidence as to
the reason for an absence” that exceeds three working days. Id.Bearzi complied with the generally applicable regulations
governing sick leave requests. Upon the advice of the Office of
Human Resources and the Office of General Counsel, Bearzi
8
Bearzi’s December 6, 2005, letter referred to 5 C.F.R.,
part 339, as the basis for his request for further medical
documentation. Those regulations more specifically concern an
individual’s medical qualifications and physical well-being.
E.g., 5 C.F.R. § 339.301(b) (authorizing agencies to require a
medical examination for positions that have “medical standards
or physical requirements”). It is apparent, however, that
Bearzi’s error was inadvertent, and his request for additional
documentation was well-founded on this record for the reasons
infra.
15
requested further medical documentation from Wells in the
December 6, 2005, letter. Bearzi directed Wells to have his
physician complete the attached Form WH-380 to verify his
medical condition and its impact on his ability to perform the
essential duties of his position. Bearzi requested this
documentation by December 20, 2005. He also reminded Wells
several times to comply with the request. Yet by December 21,
Wells had neither submitted the requested information nor
provided the form to his physician. Only after this did Bearzi
deny further leave. Accordingly, when viewing the facts in the
light most favorable to Wells, it is apparent that the district
court properly held that the Government established a
legitimate, non-discriminatory basis for Bearzi’s actions.
3.
Wells argues that Bearzi’s basis for denying sick leave was
merely pretextual. This is demonstrated, Wells claims, by
Bearzi’s refusal to grant sick leave even after the requested
medical documentation was provided. The problem with Wells’
argument is that he did not provide his e-mail, leave request
form, and doctor’s note, until December 30, 2005. This was ten
days after the stated deadline and eight days after the denial
of his sick leave request. Moreover, Wells failed to submit the
16
documentation on Form WH-380, as required, 9 or to demonstrate
that he provided all of the information requested by Bearzi.
Wells next argues that Bearzi’s ultimate approval of his
sick leave as of February 1, 2006, demonstrates that the prior
denial was pretextual. 10 Although Wells claims that he did not
provide any different medical documentation in the approved sick
leave request of January 27, 2006, than he had in the previous
denied requests, Bearzi stated that the approved request
included a doctor’s note indicating that Wells was suffering
from intestinal bleeding. The record does not contain the leave
requests in question, foreclosing any comparison of the
documentation. Thus, Wells has not shown that Bearzi knew of
9
Wells argues that Form WH-380 was inapplicable to his
situation. Although the instructions to Form WH-380 indicate
that it is “optional” and is used for requests under the Family
and Medical Leave Act, nothing in the record indicates that it
could not be used to solicit information for sick leave requests
as well. Indeed, the record indicates that DOD agencies, such
as the DSS, commonly use Form WH-380 to request information
about an employee’s medical condition. Any suggestion of
pretext is further dispelled by the fact that Bearzi’s request
that Wells use Form WH-380 was made upon the advice of the
Office of Human Resources.
10
On a related note, Wells claims that Bearzi’s change of
his status from “absent without leave” (“AWOL”) to “leave
without pay” (“LWOP”) demonstrates pretext. Wells states that
this alteration implies that Bearzi could not justify AWOL
status. However, Wells fails to explain how the initial AWOL
status was unjustified or to identify how the change of his
classification to a more favorable status could be evidence of
pretext.
17
the extent of the medical condition prior to the end of January
or that the prior sick leave requests contained adequate medical
documentation.
In addition, the record contains no evidence that Bearzi
failed to apply the generally applicable regulation to request
further medical documentation from similarly situated employees
who had requested extended sick leave. To the contrary, Bearzi
had previously required another employee to provide further
medical documentation to support a sick leave request. For
these reasons, we conclude that Wells failed to demonstrate
evidence of pretext, and the district court properly granted
summary judgment on Wells’ retaliation claim.
B.
We now turn to Wells’ claim that he was subjected to a
hostile work environment based on his age, in violation of the
ADEA, 11 and in retaliation for his protected conduct, in
violation of Title VII. The district court held that the
hostile work environment claim lacked merit because Wells
offered no evidence that the alleged harassment was based on his
11
The Government does not dispute that Wells may bring a
hostile work environment claim under the ADEA. “[W]e have
previously assumed, without deciding, that a hostile work
environment claim is generally cognizable under the ADEA for
plaintiffs age forty or older.” Baqir, 434 F.3d at 746 n.14
(citing Burns v. AAF-McQuay, Inc., 166 F.3d 292, 294 (4th Cir.
1999); Causey v. Balog, 162 F.3d 795, 801 n.2 (4th Cir. 1998)).
18
age or that it was severe or pervasive. We address each basis -
age and retaliation - separately.
1.
To make out a hostile work environment claim under the
ADEA, a plaintiff must adduce evidence that “(1) he experienced
unwelcome harassment; (2) the harassment was based on his . . .
age; (3) the harassment was sufficiently severe or pervasive to
alter the conditions of his employment and to create an abusive
atmosphere; and (4) there is some basis for imposing liability
on the employer.” Baqir, 434 F.3d at 745-46 (citing Bass v.
E.I. DuPont de Nemours & Co., 324 F.3d 761, 765 (4th Cir.
2003)).
Wells grounds his age-based harassment claim on the
following actions: Bearzi’s instruction not to use the title
“Senior Industrial Security Specialist;” issuance of an LOR
charging “blatant insubordination;” imposition of the LOI
restrictions; and posting on a bulletin board in a Human
Resources employee’s office that Wells had filed a grievance
regarding those restrictions. 12 Wells argues that Bearzi did not
impose such restrictions on similarly situated employees who
12
Although Wells also argues that the denial of his sick
leave contributed to the hostile work environment, he claims
that it was retaliatory and not based on age.
19
were not over the age of forty and, thus, not within the
protected class under the ADEA.
We find that, no matter how these actions are viewed,
Wells’ claim fails because he never demonstrates a genuine issue
of material fact that age was a factor in the alleged
harassment. “[C]onclusory statements, without specific
evidentiary support, cannot support an actionable claim for
harassment.” Causey, 162 F.3d at 802. Wells never alleges, nor
is there any evidence, that Bearzi made any age-related
comments. Wells also fails to identify any evidence that Bearzi
accorded different treatment to similarly situated employees who
were not within the protected class. Although Wells claims that
he presented evidence that younger co-workers were allowed to
use the “Senior Industrial Security Specialist” title and were
not subject to the same restrictions, nothing in the record
identifies even one co-worker under Bearzi’s supervision who was
under the age of forty, employed as an Industrial Security
Specialist at pay grade GS-12, guilty of delinquent reports even
remotely as overdue, and involved in as many episodes of
insubordination. Thus, the district court properly granted
summary judgment on Wells’ hostile work environment claim based
on age.
20
2.
To make out a hostile work environment claim based on
retaliation under Title VII, a plaintiff must show that “(1) he
experienced unwelcome harassment; (2) the harassment was . . .
[in retaliation for protected conduct]; (3) the harassment was
sufficiently severe or pervasive to alter the conditions of his
employment and to create an abusive atmosphere; and (4) there is
some basis for imposing liability on the employer.” Baqir, 434
F.3d at 745-46 (citing Bass, 324 F.3d at 765); see Von Gunten v.
Maryland, 243 F.3d 858, 869-70 (4th Cir. 2001), overruled on
other grounds by Burlington N. & Santa Fe Ry. Co. v. White, 548
U.S. 53 (2006).
Wells alleges that he was subjected to unwelcome harassment
in retaliation for his protected conduct. He points again to
Bearzi’s denial of the requested sick leave and refusal to lift
the LOI restrictions. 13
Even if this alleged unwelcome harassment could be said to
have been in retaliation for protected conduct, Wells fails to
show that it was severe or pervasive. To meet this third
element of the prima facie case, the harassment must be severe
13
The Government argues that the imposition of the LOR and
LOI restrictions were not retaliatory actions for purposes of
the hostile work environment claim. Although Wells alleges
other unwelcome harassment based on his age, he relies on the
LOR and LOI only to the extent of Bearzi’s refusal to lift the
restrictions after Wells returned from sick leave.
21
or pervasive enough to create a subjectively and objectively
hostile or abusive work environment. Harris v. Forklift Sys.,
Inc., 510 U.S. 17, 21-22 (1993); Von Gunten, 243 F.3d at 870.
We examine all of the circumstances to determine whether the
work environment was objectively hostile. These circumstances
“may include the frequency of the . . . [retaliatory] conduct;
its severity; whether it is physically threatening or
humiliating, or a mere offensive utterance; and whether it
unreasonably interferes with an employee’s work performance.”
Harris, 510 U.S. at 23. The harassment must be extreme.
Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998).
Wells may have subjectively perceived his work environment
to be hostile, but he fails to demonstrate that the alleged
harassment was objectively hostile and abusive. Bearzi denied
Wells’ sick leave request under the generally applicable
regulations governing such requests and, in doing so, relied on
the advice of the Office of Human Resources and the Office of
General Counsel to request further medical documentation.
Bearzi also reminded Wells many times to provide the
information. When Wells failed to comply by the deadline and
subsequently refused to do so, Bearzi again relied on the advice
of the Office of Human Resources and the Office of General
Counsel to deny the sick leave request. Thus, the denial was
22
the direct result of Wells’ inaction and did not reflect an
objectively hostile atmosphere.
Wells also fails to show that the refusal to lift the LOI
restrictions was objectively hostile and abusive. Federal
courts “do[] not sit as a kind of super-personnel department
weighing the prudence of employment decisions made by
[employers] charged with employment discrimination.” DeJarnette
v. Corning Inc., 133 F.3d 293, 299 (4th Cir. 1998). Bearzi
imposed the restrictions to enable Wells to catch up with
seriously overdue work, prohibit him from storing national
security files at home, and ensure that he completed his
assignments on time. The record contains no evidence that these
deficiencies were ever remedied. Based on Wells’ documented
shortcomings, the refusal to lift the LOI restrictions did not
“unreasonably interfere” with his work performance.
Accordingly, the district court properly granted summary
judgment on Wells’ hostile work environment claim based on
retaliation.
III.
Wells argues finally that the district court prematurely
granted summary judgment before allowing him the opportunity to
conduct discovery. We review the district court’s refusal to
allow discovery prior to the entry of summary judgment for abuse
23
of discretion. Harrods Ltd. v. Sixty Internet Domain Names, 302
F.3d 214, 244 (4th Cir. 2002). We will not reverse the district
court “unless there is a clear abuse of discretion or[] unless
there is a real possibility the party was prejudiced by the
denial of the extension.” Ingle v. Yelton, 439 F.3d 191, 195
(4th Cir. 2006) (citation omitted).
Federal Rule of Civil Procedure 56(f) authorizes a court to
refuse summary judgment “where the nonmoving party has not had
the opportunity to discover information that is essential to his
opposition.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250
n.5 (1986). To avail itself of this relief, the nonmoving party
must set forth specific reasons for discovery in an affidavit,
Fed. R. Civ. P. 56(f), and “may not simply assert in its brief
that discovery was necessary.” Nguyen v. CNA Corp., 44 F.3d
234, 242 (4th Cir. 1995) (internal quotation marks and citation
omitted). Although “the failure to file an affidavit under Rule
56(f) is itself sufficient grounds to reject a claim that the
opportunity for discovery was inadequate,” Evans v. Techs.
Applications & Serv. Co., 80 F.3d 954, 961 (4th Cir. 1996)
(internal quotation marks and citation omitted), a Rule 56(f)
affidavit may not be necessary under certain circumstances.
Harrods, 302 F.3d at 244-45.
Wells concedes that he never filed a Rule 56(f) motion and
affidavit. The record also contains no evidence that he raised
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the need for additional discovery in his brief in opposition to
the Government’s summary judgment motion. And although Wells
attached a witness list to his brief, his list fails to
articulate what additional facts would be gained through
discovery or how those facts would enable him to survive summary
judgment. To the contrary, it merely contains vague assertions
as to the listed individuals’ relevance. Thus, we cannot say
that the district court abused its discretion in refusing to
allow discovery prior to entering summary judgment for the
Government.
IV.
For the foregoing reasons, we conclude that Wells failed to
create a genuine issue of material fact that he suffered
retaliatory or hostile work environment discrimination. Nor
does he show that the district court abused its discretion in
refusing to allow him discovery prior to the entry of summary
judgment. Accordingly, we affirm the district court’s grant of
summary judgment.
AFFIRMED
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