            NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                       File Name: 07a0419n.06
                         Filed: June 20, 2007

                                         No. 04-5874

                      UNITED STATES COURT OF APPEALS
                           FOR THE SIXTH CIRCUIT

Maralyn S. James,                    )
                                     )
      Plaintiff-Appellee,            )                     ON APPEAL FROM THE
                                     )                     UNITED STATES DISTRICT
v.                                   )                     COURT FOR THE MIDDLE
                                     )                     DISTRICT OF TENNESSEE
                                     )
Metropolitan Government of Nashville )
and Davidson County Nashville Public )
Library,                             )
                                     )                                OPINION
      Defendant-Appellants.          )
________________________________ )

Before: GILMAN and COOK, Circuit Judges, and MILLS, District Judge.*

       RICHARD MILLS, District Judge.

                              I. PROCEDURAL HISTORY

       The Metropolitan Government of Nashville and Davidson County operates

the Nashville Public Library (collectively “the Government”). Maralyn James

began working for the Library in 1971 as a “Librarian I.” James sued the


       *
           The Honorable Richard Mills, United States District Judge for the Central District of
Illinois, sitting by designation.

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Government on April 30, 2003, alleging claims under the Americans with

Disabilities Act (the “ADA”), 42 U.S.C. § 12111, et seq., the Age Discrimination

in Employment Act (the “ADEA”), 29 U.S.C. § 621, et seq., and Title VII of the

Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. The district court dismissed

the ADA and ADEA claims on summary judgment and James proceeded to trial on

her Title VII hostile work environment and retaliation claims. On May 14, 2003,

the jury found the Government liable for retaliation and awarded James $42,000 in

compensatory damages.

      The Government moved to have the verdict set aside under Federal Rule of

Civil Procedure 50(a), claiming that the evidence did not show that James suffered

an adverse employment action. The district court denied the Government’s

motion.

      We reversed the district court and remanded. See James v. Metropolitan

Government of Nashville, 159 F.App’x 186 (6th Cir. 2005). Subsequent to our

decision, the Supreme Court decided Burlington Northern & Santa Fe Railway

Co. v. White, — U.S. —, 126 S.Ct. 2405 (2006), addressing whether Title VII

retaliation must be employment or workplace related and how harmful an action

must be to constitute retaliation. Id. at 2416. James appealed our decision, and the

Supreme Court reversed and remanded in light of Burlington Northern. See James

                                         2
v. Metropolitan Government of Nashville, — U.S. —, 127 S.Ct. 336, 166 L.Ed.2d

7 (2006). Applying Burlington Northern, we consider whether the district court

should have granted the Government’s Rule 50(a) motion.

                                    II. FACTS

      As recounted in our previous decision, James acquired records, raised funds,

catalogued materials, and performed other tasks as a Librarian 1. From 1971 to

1994, she received performance ratings primarily of “outstanding” and “above

average.” In 1994, the Library transferred James to its main branch and promoted

her to “Librarian I-and-a-half.” In 1996, James received a negative performance

evaluation with respect to the speed of her work. She knew that she was not

cataloguing materials as quickly as her coworkers.

      In July 1999, James became a “Librarian II” via a reclassification of library

job titles. Her responsibilities remained unchanged and the speed of her work

remained unsatisfactory. Performance evaluations from 1996 through 2001

consistently criticized James’ output. For instance, James’ 1999 performance

evaluation noted that she was cataloguing “just over 2 titles per hour (as opposed

to the 7-8 expected) . . . Continued low output in her primary job responsibility is

not acceptable and will have serious consequences if the situation is not

corrected.”

                                          3
      On October 1, 2001, James’ supervisor, Linda Neff, gave James a deadline

to catalogue a collection of books. James considered the deadline unfair and the

resulting stress led her to seek medical attention for headaches and high blood

pressure. James’ doctor, Michael Callaway, M.D., advised her to take several days

off work. He also sent the Library a letter notifying it that James was “to limit

stress at work, specifically no overtime and working at a pace consistent with her

abilities due to her medical condition.” Dr. Callaway later diagnosed James as

having “mild cognitive dysfunction relating to stress at work.”

      On October 3, James wrote a letter complaining that she was being

subjected to “harassment” and a “hostile work environment.” James requested a

transfer because the hostility was detrimental to her health. One of the letter’s

recipients, Library Director Donna Nicely, called James into her office on October

9 to discuss James’ complaint. Supervisors Suliang Feng and Chase Adams were

present at the meeting. Adams told James “if you will just volunteer to take a

demotion, this will all be over with.” James did not volunteer to take a demotion

and the Library did not approve her transfer. The Library investigated her

complaint and on October 31, 2001, concluded it had no merit.

      By the end of 2001, James’ poor productivity caused her to fail an annual

evaluation. The Library advised James that she would be fired if her productivity

                                          4
did not improve. On January 29, 2002, James filed an EEOC charge against the

Government alleging age discrimination, disability discrimination, and retaliation.

She received a “right to sue letter” on January 31, 2002. That same day, James

submitted a letter seeking a lateral transfer to “Librarian II-audio visual.” Despite

being ranked first on the list of applicants, James did not receive an interview.

      The Library scheduled a performance re-evaluation for James on March 1,

2002, but the re-evaluation was postponed for a month at James’ request. By April

1, James was unable to catalogue an average of 6 items per hour, a goal the

Library had given her. The Library did not discipline James. Instead, it gave her

time to improve her productivity and offered to assist her in that regard. To that

end, the Library accommodated James’ request to adjust lights around her

computer and provide her with special computer glasses. The Library also offered

techniques for James to improve her output.

      James filed a second retaliation claim with the EEOC and received a “right

to sue” letter on April 16, 2002. She sued the Library and the Metropolitan

Government of Nashville and Davidson County on April 30, 2002.

      The Library gave James until May 16, 2002, to increase her catalogue

average to 6 items per hour. By May 9, James was averaging 5.75 items per hour.

However, on May 13, 2002, James’ neurologist, Dr. Alan Bachrach, informed the

                                          5
Library that James could not return to her job because she could not keep up with

the quotas. That same day, James wrote the Government’s benefits department to

say that if the Library did not accommodate her with a position at her current level

of Librarian II, she would apply for a disability pension.

      In June 2002, the Library offered to transfer James to a Librarian I position.

James refused the demotion and applied for a disability pension. On November

19, 2002, the Library informed James that if she did not accept a demotion she

would be charged as absent without leave and subject to disciplinary action.

      The Library informed the Benefits Board that it “offered to accommodate

[James] at a lesser position with current salary.” However, the Library did not

disclose that the salary for the lesser position would, after three months, be

reduced to a level that was less than James’ Librarian II salary. Because the

Library said it could accommodate James, the Benefits Board rejected her claim

for a disability pension on April 2, 2003. James sought reconsideration, which

was also denied.

      James received her last paycheck in March 2003. When she noticed that her

family health insurance premium had not been deducted, she immediately notified

the Government. James took a $209.20 personal check to the Government’s

payroll department to pay her premium. She continued to make payments each

                                          6
month her disability pension appeal was pending. In late July 2003, James

received a letter from CIGNA cancelling her family health insurance due to non-

payment of premiums. However, the letter was a mistake and the insurance was

never cancelled. She took an early service pension and terminated her

employment on or about March 1, 2003.

      James sued the Government, and the jury decided in her favor on a Title VII

retaliation claim. The Government moved for judgment under Rule 50(a). The

district court denied the motion, but we reversed. See James, 159 F.App’x 186.

The Supreme Court reversed and remanded our decision pursuant to Burlington

Northern. See James, 127 S.Ct. 336. Upon remand, we again conclude that the

Government is entitled to judgment under Rule50(a).

                         III. STANDARD OF REVIEW

      This court reviews a district court’s denial of a motion for judgment as a

matter of law de novo. Estate of Riddle ex rel. Riddle v. Southern Farm Bureau

Life Ins. Co., 421 F.3d 400, 408 (6th Cir. 2005). The court views the evidence in

the light most favorable to the nonmoving party. Gray v. Toshiba Am. Consumer

Prods., Inc., 263 F.3d 595, 598 (6th Cir. 2001). It will affirm the jury’s verdict

unless there was “no legally sufficient evidentiary basis for a reasonable jury to

find for [the prevailing] party.” See Fed.R.Civ.P. 50(a).

                                          7
                                   IV. ANALYSIS

      “In an action under Title VII, the plaintiff may prove unlawful retaliation by

presenting direct evidence of such retaliation or by establishing a prima facie case

under the McDonnell Douglas framework.” Abbott v. Crown Motor Co., 348 F.3d

537, 542 (6th Cir. 2003) (referring to McDonnell Douglas Corp. v. Green, 411

U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)). Absent direct evidence of

retaliation, as is the case here, retaliation claims are subject to the same

McDonnell Douglas burden-shifting framework as discrimination claims.

Singfield v. Akron Metro. Hous. Auth., 389 F.3d 555, 563-64 (6th Cir. 2004). To

establish a prima facie case of retaliation, James had to show (1) she engaged in

activity protected by Title VII, (2) the Government knew she engaged in this

activity, (3) the Government subjected her to an adverse employment action, and

(4) a causal connection exists between the protected activity and the adverse

employment action. Singfield, 389 F.3d at 563.

      “If and when a plaintiff has established a prima facie case, the burden of

production of evidence shifts to the employer to ‘articulate some legitimate,

nondiscriminatory reason’ for its actions.” Id. (quoting McDonnell Douglas, 411

U.S. at 802). The plaintiff must then demonstrate “that the proffered reason was

not the true reason for the employment decision.” Id. (quoting Texas Dept. of

                                           8
Community Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct. 1089, 67 L.Ed.2d 207

(1981)). The employer may also prove an affirmative defense to retaliatory

harassment by a supervisor by demonstrating: “(a) that the employer exercised

reasonable care to prevent and correct promptly any . . . harassing behavior, and

(b) that the plaintiff employee unreasonably failed to take advantage of any

preventative or corrective opportunities provided by the employer to avoid harm

otherwise.” Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257,

2270, 141 L.Ed.2d 633 (1998).

      A. Adverse Employment Actions

      In Burlington Northern, the Supreme Court considered just how harmful an

action must be to constitute retaliation. 126 S.Ct. at 2415. The Court explained

that for conduct to become actionable retaliation “[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.” Id. at 2415 (citations and

quotation marks omitted).

      At trial, James produced evidence of various harms the Government

allegedly caused her (i.e., denial of lateral transfers, bad employment evaluations,

and the imposition of cataloguing quotas.). Prior to Burlington Northern, those

                                          9
harms were not adverse employment actions. See Sherman v. Chrysler Corp., 47

F.App’x 716, 721-22 (6th Cir. 2002) (unpublished)(denial of lateral transfer is not

an adverse employment action under the ADEA); Primes v. Reno, 190 F.3d 765,

767 (6th Cir. 1999) (an unfavorable evaluation without an accompanying adverse

employment action, such as a lower wage, is not actionable as a Title VII

retaliation claim); Agnew v. BASF Corp., 286 F.3d 307, 10 (6th Cir. 2002)

(requiring an employee to comply with a reasonable performance plan or be

subject to discipline does not constitute an adverse employment action under the

ADEA). After Burlington Northern, excluding an employee from a weekly

training lunch that contributes significantly to the employee’s professional

advancement is materially adverse conduct. Id. at 2415-16. Markedly worse

performance evaluations that significantly impact an employee’s wages or

professional advancement are also materially adverse. See Halfacre v. Home

Depot, U.S.A., Inc., 2007 WL 1028860, *9 (6th Cir. 2007).

      Many of the adverse actions James complains about preceded her 2002 Title

VII charges. Nevertheless, it is true that the Government denied James’s request

for a lateral transfer, gave her bad employment evaluations, and imposed

cataloguing quotas after she filed her charges with the EEOC. However, it is also

true that none of these things James complained about significantly affected her

                                         10
professional advancement. James continued to work and she received the same

pay despite her Title VII claims. She also continued to receive the bad

evaluations, but those were not markedly worse than earlier ones and the

evaluations did not affect her earnings. Her employment conditions were

essentially unchanged after she filed with the EEOC. James’s allegations are not

actionable because they failed to significantly impact her professional

advancement and would not have dissuaded a reasonable person from filing a Title

VII claim.

       James also contended that the Government’s opposition to her disability

application, the “cancellation” of her family’s health insurance, its

“misrepresentation” about paying her the same salary to work a lesser position,

and the reduced service pension it paid her are adverse employment actions.1

James’s contentions are incorrect.

       James was not entitled to disability benefits because she was able to perform

work as a Librarian I. The position was comparable to her cataloguing position

and the Government offered her the Librarian I job as a reasonable


       1
           Although these events occurred after James left the workplace, post-employment
injuries can be actionable under Title VII. See Robinson v. Shell Oil Co., 519 U.S. 337, 339, 346,
117 S.Ct. 843, 136 L.Ed.2d 808 (1997) (holding that the term “employees,” as used in Title VII’s
anti-retaliation provision, includes former employees bringing suit for retaliatory, post-
employment actions, such as a negative reference to a potential employer).

                                               11
accommodation. Since James was not entitled to disability benefits, the

Government could not support her disability application. While James claimed

that the Government misrepresented the fact that the Librarian I position paid less

than her current salary, the record shows that James informed the Benefits Board

that her salary would be slightly lower if she accepted the lesser position. The

Board’s decision to deny James a disability pension despite the discrepancy shows

that the Government’s “misrepresentation” did not affect the Board’s decision.

Thus, James suffered no adverse employment action via the alleged

misrepresentation or cancellation.

      James also failed to show that her family’s insurance was cancelled. The

testimony showed that an insurance company (not the Government) sent James a

letter cancelling her family’s health insurance. However, the letter was a mistake

and the insurance was never cancelled.

      The closest James came to establishing an adverse employment action was

when she alleged that the Government reduced her service pension. Prior to

James’ retirement, John Kennedy, the Government’s Assistant Director of Human

Resources, provided James a chart showing that her pension would be $1,803.66

per month if she ended her service on March 1, 2003, at age 55 and a half. James

ended her service at that time, but her monthly pension turned out to be $1,506.06.

                                         12
Although James contended that the smaller pension was evidence of retaliation,

the chart plainly explained that any person who retired before reaching age 60

would have his or her pension reduced by 4% per year. Thus, James’ pension was

reduced to $1,506.06 per month because she retired early. It was not reduced due

to retaliation. Even if the chart was somehow unclear or wrongly explained, James

never contended that the Government used the chart to fraudulently induce her

retirement and she never argued that she detrimentally relied on the chart.

      B. Severe or Pervasive Retaliatory Harassment by a Supervisor

      Alternatively, James argues that the jury could have returned a verdict in her

favor based on severe or pervasive retaliatory conduct. Evidence of severe or

pervasive supervisor harassment following a discrimination complaint can

constitute retaliation for purposes of Title VII. See Akers v. Alvey, 338 F.3d 491,

498 (6th Cir. 2003) (citation and quotation marks omitted). The harassment must

be “sufficiently severe or pervasive to alter the conditions of the victim’s

employment and create an abusive working environment.” Id. (citing Harris v.

Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993)).

“[T]his test has both an objective and a subjective component: the conduct must be

severe or pervasive enough to create an environment that a reasonable person

would find hostile or abusive, and the victim must subjectively regard that

                                          13
environment as hostile or abusive.” Id. (citation omitted).

      The only evidence James offers to show “severe or pervasive harassment” is

the Government’s opposition to her disability benefits application and

“cancellation” of her health insurance. Because the Government was not

responsible for the mistaken cancellation letter James received, the only action

James can complain about is the Government’s opposition to her disability

benefits application. As explained earlier, James was not entitled to benefits. The

Government’s failure to support an undeserving application is not harassment.

                                V. CONCLUSION

      Upon reconsideration in light of Burlington Northern, we find James did not

present evidence sufficient for a jury to find in favor of her retaliation claim. We

therefore REVERSE the district court’s decision to deny the Government’s Rule

50 motion and remand for proceedings consistent with this opinion.




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