                               In the
 United States Court of Appeals
                For the Seventh Circuit
                           ____________

No. 01-3202
SIEGFRIED HERRNREITER,
                                                    Plaintiff-Appellant,
                                   v.

CHICAGO HOUSING AUTHORITY,
                                                   Defendant-Appellee.
                           ____________
              Appeal from the United States District Court
         for the Northern District of Illinois, Eastern Division.
              No. 98 C 5209—Rebecca R. Pallmeyer, Judge.
                           ____________
   ARGUED OCTOBER 18, 2002—DECIDED DECEMBER 30, 2002
                           ____________


  Before POSNER, DIANE P. WOOD, and EVANS, Circuit
Judges.
  POSNER, Circuit Judge. The Chicago Housing Authority’s
Office of the Inspector General has two divisions, audit-
ing and (field) investigations. The plaintiff in this Title VII
case, Siegfried Herrnreiter, is an accountant who was
employed in the auditing division. Investigators tradition-
ally are trained law enforcement officers, such as former
police officers or Treasury agents. But the Inspector Gen-
eral decided that it might be helpful in financial inves-
tigations if one of the investigators was an auditor, so
Herrnreiter was transferred to the investigation division.
2                                                  No. 01-3202

He loved being an investigator. He found it more interest-
ing and challenging than auditing, and he also had the
use of a car supplied by the CHA and did not have to
sign in and out of the office, as he had had to do as an
auditor. But the idyll was short-lived. After six months
the newly appointed Inspector General, Leonard Odom—
who had approved Herrnreiter’s transfer to the investiga-
tions division several months after it had taken place—
transferred him back to auditing. A couple of months later
Odom fired Herrnreiter, ostensibly for unsatisfactory per-
formance of the auditing tasks that had been assigned
to him. Herrnreiter is a white, naturalized U.S. citizen of
German origin; Odom is black; and Herrnreiter contends
that his transfer back to the auditing division and his
subsequent termination were motivated by his race and
national origin. The district court granted summary judg-
ment for the housing authority.
   Title VII does not forbid every act of invidious discrim-
ination that an employer might commit against an em-
ployee; the act must be “with respect to [the employee’s]
compensation, terms, conditions, or privileges of employ-
ment.” 42 U.S.C. § 2000e-2(a)(1). The cases paraphrase
this either as “a tangible employment action,” that is, “a
significant change in employment status, such as hiring,
firing, failing to promote, reassignment with significantly
different responsibilities, or a decision causing a signifi-
cant change in benefits,” Burlington Industries, Inc. v. Ellerth,
524 U.S. 742, 761 (1998), or as a “materially adverse em-
ployment action,” Traylor v. Brown, 295 F.3d 783, 788 (7th
Cir. 2002); Haugerud v. Amery School District, 259 F.3d 678,
691 (7th Cir. 2001); see also Ford v. General Motors Corp.,
305 F.3d 545, 553 (6th Cir. 2002). Herrnreiter interprets
these paraphrases to mean any action that displeases
the employee. If he is right, one dirty look would be
enough to trigger liability under Title VII. The language
No. 01-3202                                                    3

that we have quoted from the statute and the case law
does not support his interpretation, but we do not stop
there.
  The cases that find the statutory criterion (however it
should be formulated) satisfied can be divided into three
groups:
  1. Cases in which the employee’s compensation, fringe
benefits, or other financial terms of employment are di-
minished, including, of course, as the limiting case, ter-
mination of employment. See, e.g., Simpson v. Borg-Warner
Automotive, Inc., 196 F.3d 873, 876 (7th Cir. 1999); Smart
v. Ball State University, 89 F.3d 437, 441 (7th Cir. 1996);
Greer v. St. Louis Regional Medical Center, 258 F.3d 843, 845-
46 (8th Cir. 2001).
   2. Cases in which a nominally lateral transfer with no
change in financial terms significantly reduces the em-
ployee’s career prospects by preventing him from using
the skills in which he is trained and experienced, so that
the skills are likely to atrophy and his career is likely to
be stunted. See, e.g., Flaherty v. Gas Research Institute, 31
F.3d 451, 456-57 (7th Cir. 1994); Crady v. Liberty National
Bank & Trust Co., 993 F.2d 132, 135-36 (7th Cir. 1993); Col-
lins v. Illinois, 830 F.2d 692, 703-04 (7th Cir. 1987); Rodriguez
v. Board of Education, 620 F.2d 362, 366 (2d Cir. 1980); Torre
v. Casio, Inc., 42 F.3d 825, 831, 834-35 and n. 7 (3d Cir. 1994).
These cases differ from those in the first category only in
involving a future rather than present harm; the harm
nevertheless is financial. They are to be distinguished from
cases involving “a purely lateral transfer, that is, a transfer
that does not involve a demotion in form or substance. . . .
[Such a transfer] cannot rise to the level of a materially
adverse employment action. A transfer involving no re-
duction in pay and no more than a minor change in work-
4                                                   No. 01-3202

ing conditions will not do, either.” Williams v. Bristol-Myers
Squibb Co., 85 F.3d 270, 274 (7th Cir. 1996).
  2a. A variant of category 2 is where the employee’s job
is changed in a way that injures his career just as in the
cases in that category except that there is no transfer. See,
e.g., Dahm v. Flynn, 60 F.3d 253, 256-57 (7th Cir. 1994);
Chuang v. University of California Davis, 225 F.3d 1115, 1125-
26 (9th Cir. 2000).
   3. Cases in which the employee is not moved to a differ-
ent job or the skill requirements of his present job altered,
but the conditions in which he works are changed in a
way that subjects him to a humiliating, degrading, unsafe,
unhealthful, or otherwise significantly negative altera-
tion in his workplace environment—an alteration that
can fairly be characterized as objectively creating a hard-
ship, the classic case being that of the employee whose desk
is moved into a closet. See, e.g., Smart v. Ball State University,
supra, 89 F.3d at 441 n. 1; Durham Life Ins. Co. v. Evans, 166
F.3d 139, 152-53 (3d Cir. 1999); Parrish v. Immanuel Medical
Center, 92 F.3d 727, 731-32 (8th Cir. 1996); see also Spring
v. Sheboygan Area School District, 865 F.2d 883, 885-86 (7th
Cir. 1989); Meyer v. Brown & Root Construction Co., 661 F.2d
369, 372 (5th Cir. 1981); cf. Parrett v. City of Connersville,
737 F.2d 690, 693-94 (7th Cir. 1984). This category includes
cases of constructive discharge: the employer has made
the job unbearable for the employee. E.g., id.; EEOC v.
University of Chicago Hospitals, 276 F.3d 326, 331-32 (7th
Cir. 2002); Lindale v. Tokheim Corp., 145 F.3d 953, 955 (7th
Cir. 1998). It also includes cases of harassment: mistreat-
ment of an employee by coworkers or supervisors that
is sufficiently severe to worsen substantially his condi-
tions of employment as they would be perceived by a rea-
sonable person in the position of the employee. Faragher
v. City of Boca Raton, 524 U.S. 775, 786-88 (1998); Hilt-Dyson
No. 01-3202                                                 5

v. City of Chicago, 282 F.3d 456, 462-63 (7th Cir. 2002).
Categories 2, 2a, and 3 often overlap. See, e.g., Collins v.
Illinois, supra, 830 F.2d at 703-04.
  What remains are cases of purely subjective preference
for one position over another—which is this case. An
auditor’s job is not objectively inferior to an investigator’s
job that has identical financial terms; nor is an accountant
who is transferred from investigations to audits deprived
of the opportunity to use the skills for which he is trained—
the opposite is the case. The use of a company car and be-
ing excused from having to sign in or out of an office
might be preferred by some employees, but not having
to run around all day might be considered by others
ample compensation for giving up those particular perks.
The two jobs were equivalent other than in idiosyncratic
terms that do not justify trundling out the heavy artillery
of federal antidiscrimination law; “otherwise every trivial
personnel action that an irritable, chip-on-the-shoulder
employee did not like would form the basis of a discrim-
ination suit. The Equal Employment Opportunity Com-
mission, already staggering under an avalanche of filings
too heavy for it to cope with, would be crushed, and se-
rious complaints would be lost among the trivial.” Williams
v. Bristol-Myers Squibb Co., supra, 85 F.3d at 274; see also
Burger v. Central Apartment Management, Inc., 168 F.3d 875,
879 (5th Cir. 1999) (per curiam); Brown v. Brody, 199 F.3d
446, 457 (D.C. Cir. 1999); Forkkio v. Powell, 306 F.3d 1127,
1130-31 (D.C. Cir. 2002).
  Out of caution we note that some of the cases we have
cited because they contain good discussions of when an
adverse employment action is actionable were actually
cases involving retaliation. We do not mean to suggest by
such citations that retaliation, to be actionable under Title
VII (or other statutes), has to involve an adverse employ-
6                                                No. 01-3202

ment action. It does not. Aviles v. Cornell Forge Co., 183
F.3d 598, 605-06 (7th Cir. 1999), 241 F.3d 589, 593 (7th Cir.
2001); Passer v. American Chemical Society, 935 F.2d 322, 331-
32 (D.C. Cir. 1991); EEOC Compliance Manual § 8, ¶ 8008
(1998) (directive No. 915.003); see also Veprinsky v. Fluor
Daniel, Inc., 87 F.3d 881, 891-92 (7th Cir. 1996). Some cases
reach this conclusion by interpreting “adverse employ-
ment action” in the retaliation context as not requiring
an actual employment action; an example is Berry v.
Stevinson Chevrolet, 74 F.3d 980, 986-87 (10th Cir. 1996),
where the retaliation took the form of preferring charges
of theft and forgery against an employee who had filed
a charge of discrimination. See also Ray v. Henderson, 217
F.3d 1234, 1242-43 (9th Cir. 2000). As we explained in
McDonnell v. Cisneros, 84 F.3d 256, 258-59 (7th Cir. 1996),
“No limiting language appears in Title VII’s retaliation
provision. 42 U.S.C. § 2000e-3(a). The language of ‘ma-
terially adverse employment action’ that some courts
employ in retaliation cases is a paraphrase of Title VII’s
basic prohibition against employment discrimination,
found in 42 U.S.C. §§ 2000e-2(a)(1) and (2). . . . The pro-
vision regarding retaliation may intentionally be broader,
since it is obvious that effective retaliation against em-
ployment discrimination need not take the form of a job
action.” We left open in that case the question whether
retaliation in other forms was actionable under Title VII,
remarking that “shooting a person for filing a complaint of
discrimination would be an effective method of retaliation,
though . . . the victim of the retaliation would have other,
and more powerful, remedies than a suit under Title VII.
This would be a reason for confining the provision to
retaliation that takes the form of an adverse job action.”
Id. at 259. The cases cited earlier in this paragraph have
now resolved the issue by holding that the provision is
not so confined.
No. 01-3202                                                  7

   But what if the retaliation does take the form of an em-
ployment action: must that action be as severe as would
be required if the action were charged as discrimina-
tion rather than as retaliation? The cases like Berry that
define adverse employment action more broadly in the
retaliation context implicitly answer “no,” though many
cases state or more commonly assume that the answer
is “yes.” See, e.g., Spearman v. Ford Motor Co., 231 F.3d
1080, 1086 (7th Cir. 2000); Heuer v. Weil-McLain, 203 F.3d
1021, 1023 (7th Cir. 2000); Fortier v. Ameritech Mobile Com-
munications, Inc., 161 F.3d 1106, 1111 n. 7 (7th Cir. 1998);
Rabinovitz v. Pena, 89 F.3d 482, 488-89 (7th Cir. 1996);
Fierros v. Texas Dept. of Health, 274 F.3d 187, 191, 193 (5th
Cir. 2001); Robinson v. City of Pittsburgh, 120 F.3d 1286, 1300
(3d Cir. 1997). That may be a welcome simplification, but
it can be criticized especially in cases in which an em-
ployee is retaliated against for making or more commonly
assisting a complaint on behalf of a coworker, see, e.g.,
Rucker v. Higher Educational Aids Board, 669 F.2d 1179, 1182
(7th Cir. 1982); Johnson v. University of Cincinnati, 215 F.3d
561, 580-81 (6th Cir. 2000); Weiss v. Parker Hannifan Corp.,
747 F. Supp. 1118, 1130 (D.N.J. 1990), as it presumably takes
rather little to deter such altruistic action, which is never-
theless protected by the statute. We are not aware that
any of the decisions that equate the standards for dis-
crimination and retaliation involved a third-party com-
plaint. This is not an issue to be resolved in this case,
however, which does not involve retaliation, and we
mention it only to emphasize that in citing retaliation
cases for their discussion of what “materially adverse
employment action” means we do not necessarily endorse
the view that such an action is always required to make
retaliation actionable under Title VII.
  Although the transfer of Herrnreiter back to the audit
division was not actionable under Title VII, we must con-
8                                               No. 01-3202

sider the discharge that followed; obviously that was a
materially adverse employment action. Herrnreiter ar-
gues that he was “set up” by Odom to fail by being
given tasks that he could not be expected to complete
within the prescribed deadlines and then being fired
when he failed to make them. This is a perfectly good
theory of discrimination, see, e.g., McPhaul v. Board of
Commissioners, 226 F.3d 558, 565 (7th Cir. 2000); Shager v.
Upjohn Co., 913 F.2d 398, 405 (7th Cir. 1990); Danzer v.
Norden Systems, Inc., 151 F.3d 50, 54-55 (2d Cir. 1998);
Stacks v. Southwestern Bell Yellow Pages, 27 F.3d 1316, 1325-
26 (8th Cir. 1994), but it is not supported by the facts.
Herrnreiter admits having had more experience as an
auditor than the other employees in the audit division
and it was natural therefore that he would be given chal-
lenging tasks, but the tasks he was given and failed to
complete were standard auditing tasks rather than the
labors of Hercules. There were deadlines, but they were
not rigid; so far as appears, had he reported progress
they would have been extended. The likeliest inference
from the facts developed in the summary judgment pro-
ceeding is that he was sulking because of having been
transferred back to the audit division, losing the car and
the freedom of an investigator. He admitted in his dep-
osition that “he probably gave up” trying to satisfy his
superiors’ demands, though they appear to have been
reasonable.
  Although as we saw earlier Herrnreiter’s transfer from
the investigation division back to the audit division was
not actionable, were there evidence that Odom made
the transfer because of Herrnreiter’s race or national ori-
gin this would be usable as evidence that Herrnreiter’s
subsequent termination by Odom was the second step of
a two-step adverse employment action that was invid-
iously motivated. Mathewson v. National Automatic Tool
No. 01-3202                                                   9

Co., 807 F.2d 87, 91 (7th Cir. 1986); cf. Oest v. Illinois Dept.
of Corrections, 240 F.3d 605, 613-14 (7th Cir. 2001); Becker
v. ARCO Chemical Co., 207 F.3d 176, 194 n. 8 (3d Cir.
2000). We do not agree with the defendant that this claim
is blocked by the so-called “common actor” presumption.
When the same person hires and later fires the employ-
ee who claims that his firing was discriminatory, judges
are skeptical, because why would someone who disliked
whites, or Germans, or members of some other group to
be working for him have hired such a person in the first
place? See, e.g., Rand v. CF Industries, Inc., 42 F.3d 1139,
1147 (7th Cir. 1994); Bradley v. Harcourt, Brace & Co., 104 F.3d
267, 270-71 (9th Cir. 1996); Proud v. Stone, 945 F.2d 796, 797
(4th Cir. 1991). It is misleading to suggest (as some cases
do, see, e.g., Roberts v. Separators, Inc., 172 F.3d 448, 452
(7th Cir. 1999); Brown v. CSC Logic, Inc., 82 F.3d 651, 658
and n. 25 (5th Cir. 1996); Blankerts v. V. Gladieux Enterprises,
197 F. Supp. 2d 956, 961-62 (N.D. Ohio 2002); cf. Bradley
v. Harcourt, Brace & Co., supra, 104 F.3d at 270-71) that
this skepticism creates a “presumption” of nondiscrim-
ination, as that would imply that the employee must meet
it or lose his case. It is just something for the trier of fact
to consider. See Stalter v. Wal-Mart Stores, Inc., 195 F.3d
285, 291 n. 3 (7th Cir. 1999); Johnson v. Zema Systems Corp.,
170 F.3d 734, 744-45 (7th Cir. 1999); Waldron v. SL Indus-
tries, Inc., 56 F.3d 491, 496 n. 6 (3d Cir. 1995); cf. Kadas v.
MCI Systemhouse Corp., 255 F.3d 359, 361 (7th Cir. 2001). It
is out of place in this case, because while Odom ap-
proved Herrnreiter’s transfer to the investigation division,
the transfer had been decided by Odom’s predecessor and
had actually taken place months before Odom’s approval.
That approval was only the weakest kind of evidence
that he actually “wanted” Herrnreiter in investigations.
  But Herrnreiter still must lose, as there is no evidence
that his race or national origin played a role in his trans-
fer back from investigations to audits. It is true that he
10                                             No. 01-3202

received a highly positive performance rating for his few
months as an investigator. But appointing a person inex-
perienced in law enforcement to be an investigator was
an experiment and there is irrefutable evidence that it
failed because Herrnreiter did not have proper tech-
niques for interviewing witnesses and did not mend his
ways in response to criticisms and directives from his
superiors. It is true that he was replaced by a black per-
son when he was transferred, but it is also true that a
black investigator terminated for unsatisfactory perfor-
mance shortly after Herrnreiter’s transfer was replaced by
a white.
  There is a further point. At argument, his lawyer had no
opinion when asked whether, had Herrnreiter not been
transferred to investigations in the first place but had
remained in the audit division, Odom would have “set
him up to fail.” In other words, Herrnreiter’s own lawyer
is agnostic on whether, had it not been for the transfer,
Herrnreiter would still be employed by the housing au-
thority as an auditor despite his race and national origin.
But if he would be, what improper motive could be as-
signed to Odom in firing him? None of the auditors was
black when Herrnreiter rejoined the audit staff; and there
is no evidence as to whether Herrnreiter was replaced
and if so by a white or a black—while until Herrnreiter
became an investigator, all the investigators were black.
Even if we suppose that Odom wanted to keep the inves-
tigative staff all black and that’s why he transferred
Herrnreiter back to audits, Herrnreiter’s lawyer does not
argue that Odom wanted to change the racial composi-
tion of the audit staff and if this is so then Herrnreiter
must indeed have been fired either because his perfor-
mance was unsatisfactory or for some other reason unre-
lated to his race.
                                                AFFIRMED.
No. 01-3202                                            11

A true Copy:
       Teste:

                       _____________________________
                       Clerk of the United States Court of
                         Appeals for the Seventh Circuit




                USCA-02-C-0072—12-30-02
