                           UNPUBLISHED ORDER
                        Not to be cited per Circuit Rule 53




           United States Court of Appeals
                            For the Seventh Circuit
                            Chicago, Illinois 60604

                           Submitted August 18, 2005*
                            Decided August 18, 2005

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

                                    ORDER

       Michael Thomas brought this 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 schedules which does
not materially affect the terms of employment cannot constitute an adverse
employment action.



      *
        After an examination of the briefs and the record, we have concluded that
oral argument is unnecessary. Thus, the appeal is submitted on the briefs and the
record. See Fed. R. App. P. 34(a)(2).
No. 05-1454                                                                    Page 2

       Thomas began working for the Postal Service as a custodian in the
“maintenance craft” department on the day shift in 1988. Later, believing that he
had been passed over for a promotion or transfer, Thomas filed a complaint with the
EEOC. As a result of that complaint, in 1994 he and the Postal Service entered into
a settlement agreement stipulating that he would be promoted to a “maintenance
support clerk.” The promotion did not alter Thomas’ work schedule; he continued to
work the day shift. In 1997, after the department had relocated to a new facility,
Thomas’ supervisor transferred him to the night shift; five women and four men,
however, were allowed to stay on the day shift. Compared to Thomas, each of these
employees had less seniority in the “maintenance craft” department but more
seniority as a maintenance support clerk, the higher-level job. The transfer of
personnel to the new facility was generally subject to a memorandum of
understanding with the postal workers’ union that might have prioritized Thomas’
maintenance craft seniority and allowed him to keep his day shift, but Thomas does
not contest the postal service’s contention in its statement of material facts that
this understanding did not extend to maintenance support clerks.

       Thomas then filed the complaint in this suit, alleging that the Postal Service
discriminated against him by altering his shift while allowing female employees
with less seniority to keep their day shifts. He also claimed that his shift change
was in retaliation for filing the complaint with the EEOC that resulted in the 1994
settlement. Thomas later amended his complaint to add a claim that the Postal
Service retaliated against him by disregarding the 1994 settlement, in that the
Service took nearly two years to complete the paperwork making his promotion
permanent.

       The district court granted summary judgment for the Postal Service,
determining that “a decision to change an employee’s work shift, without a change
in the employee’s title, pay or responsibilities, does not rise to the level of an
adverse employment action.” The court determined that Thomas had not presented
a prima facie case of discrimination or retaliation, citing Grube v. Lau Industries,
Inc., 257 F.3d 723, 728-29 (7th Cir. 2001), in which we held that an employer’s
decision to change a female employee’s working hours was not an adverse
employment action because her pay and job title remained the same and she
suffered no significantly diminished job responsibilities. Id.

       On appeal, Thomas’ most discernible argument is that the district court erred
by determining that he had not suffered an adverse employment action. He seems
to suggest that his shift change was an adverse employment action because it
caused him to suffer severe depression that necessitated medical treatment and
counseling. For the purposes of Title VII, however, an adverse employment action
must be “materially adverse,” in that it “significantly alters the terms and
conditions of the employee's job.” See Griffin v. Potter, 356 F.3d 824, 829 (7th Cir.
2004) (holding that a postal employee did not suffer an adverse employment action
No. 05-1454                                                                  Page 3

when the postal service, among other actions, changed her shift). While we may
assume for the purposes of summary judgment that Thomas actually suffered
emotional distress from his shift change, Title VII does not provide a remedy for
actions like those here that do not affect an employee’s terms of employment. See
Smart v. Ball State University, 89 F.3d 437, 441 (7th Cir. 1996). Nor would Title
VII be the appropriate remedy for any failure to implement the memorandum of
understanding.

       Thomas also seems to argue that the Postal Service carried out an adverse
employment action when it broke the terms of the 1994 EEOC settlement by
promoting him to maintenance supply clerk without processing the paperwork to
make his promotion permanent. Again, Thomas fails to show how the terms or
conditions of his employment were materially affected. See Griffin, 356 F.3d at 829.
In any event, by failing to present this claim to the EEOC, Thomas failed to exhaust
his administrative remedies, and thus this claim is not properly before us. See
Dandy v. United Parcel Serv., Inc., 388 F.3d 263, 270 (7th Cir. 2004).

       Because Thomas has not shown a genuine issue of material fact as to
whether he suffered an adverse employment action, the grant of summary judgment
for the Postal Service was not in error. The judgment of the district court is
AFFIRMED.
