                             UNPUBLISHED ORDER
                        Not to be cited per Circuit Rule 53



                   United States Court of Appeals
                            For the Seventh Circuit
                             Chicago, Illinois 60604
                            (Submitted August 3, 2006)

                             Decided October 11, 2006


                                      Before

                    Hon. RICHARD A. POSNER, Circuit Judge

                    Hon. DIANE P. WOOD, Circuit Judge

                    Hon. TERENCE T. EVANS, Circuit Judge

No. 05-1454

MICHAEL A. THOMAS,                           Appeal from the United States
         Plaintiff-Appellant,                  District Court for the
                                               Northern District of Illinois,
              v.                               Eastern Division.

JOHN E. POTTER,                              No. 02 C 3576
          Defendant-Appellee.
                                             James B. Zagel, Judge.



                                    ORDER

       Michael Thomas brought suit under Title VII, alleging that the United States
Postal Service retaliated and discriminated against him based on his gender when it
changed his shift schedule. The district court granted summary judgment for the
Postal Service, concluding that a mere change in shift schedule which does not
materially affect the terms of employment cannot constitute an adverse employment
action. We affirmed in Thomas v. Potter, No. 05-1454, 2005 WL 1994328 (7th Cir. Aug.
18, 2005). The Supreme Court subsequently held in Burlington Northern & Santa Fe
Railway Co. v. White, 548 U.S. ___, 126 S.Ct. 2405 (2006), that the anti-retaliation
No. 05-1454                                                                      Page 2


provision of Title VII is not limited to actions that materially affect the terms and
conditions of employment, but rather “an employer can effectively retaliate against an
employee by taking actions not directly related to his employment or by causing him
harm outside the workplace.” Id. at 2412–13 (italics in original). In so holding, the
Court noted with approval that other circuits, including this one, have declined to limit
the scope of the anti-retaliation provision. See id. at 2410–11 (citing Washington v.
Illinois Department of Revenue, 420 F.3d 658, 662 (7th Cir. 2005)). Shortly thereafter,
the Supreme Court granted Thomas’s petition for a writ of certiorari and remanded the
case to this court for further consideration in light of the decision in Burlington
Northern. We invited the parties to comment on the effect of Burlington Northern. On
consideration of Burlington Northern and the parties’ comments, we again affirm the
district court’s judgment.

       The proper inquiry under Burlington Northern and our pre-Burlington Northern
case law is whether a reasonable employee would have found the challenged retaliatory
act materially adverse in that it would dissuade a reasonable worker from filing a
charge, regardless of whether the act is employment-related. Burlington Northern, 126
S.Ct. at 2414–16; Washington, 420 F.3d at 661–63. Here, the purported retaliatory
act—the change to Thomas’s shift schedule—is directly related to his employment.
Therefore Burlington Northern does not alter the outcome of this case, unless there
was intentional, non-employment-related harm to Thomas from the shift change.
Burlington Northern, 126 S.Ct. at 2415–16 (citing Washington, 420 F.3d at 662). In
Washington, we concluded that a jury could find that Washington’s employer retaliated
against her because it exploited her “unique vulnerability” by changing her work
schedule knowing that she would be required to take two hours of leave per day to care
for her disabled son. Washington, 420 F.3d at 662–63.

       However, unlike in Washington, Thomas does not assert—nor does the record
contain any evidence—that he had a unique vulnerability that the Postal Service knew
about and sought to exploit by changing his shift schedule. Thomas’s assertion that
the shift change was undesirable or inconvenient to him does not rise to the level of
harm sufficiently serious to “dissuade[ ] a reasonable worker from making or
supporting a charge of discrimination.” Burlington Northern, 126 S.Ct. at 2415
(quoting Washington, 420 F.3d at 662). In any event, Thomas identifies no evidence
that the Postal Service imposed the shift change with the knowledge or intention that
Thomas would consider it undesirable or inconvenient. Accordingly, we cannot say
that the district court erred in concluding that Thomas failed to demonstrate that the
challenged retaliatory act had a materially adverse effect on him.

                                                                            AFFIRMED.
