Appeal from the United States District Court for the Southern District of California. D.C. No. CV-87-0482-K. Judith N. Keep, District Judge, Presiding.
Before: Alarcon, Beezer and Rymer, Circuit Judges.
The Navy Electronic Systems Engineering Center at San Diego (Navelex), a federal employer, fired Arthur Christie. Christie considers this the unlawful culmination of "years of discriminatory and conspiratorial conduct" based on his physical handicap and in retaliation for his numerous EEO complaints. After pursuing administrative remedies, he sued, alleging a variety of statutory and constitutional violations. The district court disposed of all of Christie's claims, concluding that they were either time-barred, preempted or meritless. Christie's timely appeal raises eight claims of error. We affirm.
We review de novo the district court's grant of summary judgment. Yartzoff v. Thomas, 809 F.2d 1371, 1373 (9th Cir. 1987). We must determine whether, viewing the evidence and the inferences from that evidence in the light most favorable to the nonmoving party, there remains any genuine issue of material fact and whether the moving party is entitled to judgment as a matter of law. Id. Contrary to Christie's assertion, the usual summary judgment rules do apply to Title VII actions. Id.
Christie seeks to overturn the district court's grant of summary judgment as to the first claim of his third amended complaint. This claim arose out of Christie's January 1985 performance evaluation. Although the evaluation reflected "satisfactory" performance in all areas, Elray Adkins, Christie's supervisor, added what Christie characterizes as "derogatory comments concerning [his] need to improve his performance by closer check of his work and his need to improve personal contact and relationships with coworkers."
According to Christie, Adkins added these comments after Christie had signed off on the review. Perceiving this as part of a campaign to sully his work record and get him fired, Christie filed an EEO complaint. He sought removal of the comments, a comparative and quality assurance study, a lateral transfer and attorney's fees. Adkins maintained that he added the comments before Christie signed the form and that he could supply documentation to support their substance. Navelex officers did not resolve the timing dispute, but did remove the comments. They denied the other requested relief as "disproportionate to the action complained of."
Under either a handicap discrimination or a retaliation theory, Christie bears the burden of showing that he suffered an "adverse employment action" in order to make out a prima facie case under Title VII or the Rehabilitation Act. Yartzoff, 809 F.2d at 1375 (Title VII); Sisson v. Helms, 751 F.2d 991, 993-94 (9th Cir.), cert. denied, 474 U.S. 846 (1985) (Rehabilitation Act).
Christie does not address this required showing. He argues that the claim should survive because he "was not granted the full relief that he requested." As the district court concluded, he received all the relief to which he was entitled. The comments were removed and had no effect on his employment status. See, e.g., Jordan v. Clark, 847 F.2d 1368, 1377 (9th Cir. 1988) (although challenged actions occured, they did not have an adverse impact on employee), cert. denied, 488 U.S. 1006 (1989); Ferguson v. E.I. duPont de Nemours and Co., 560 F. Supp. 1172, 1201 (D. Del. 1983) (because temporary transfer did not cause a degradation in employment status, Title VII plaintiff suffered no adverse employment action from it). There is no triable issue of material fact as to this claim. Christie cannot create one merely by stating that he requested more relief.
Christie next contends that the district court erred in granting summary judgment on the second claim of his third amended complaint based on untimely filing in the district court. In his second claim, Christie challenges the termination of his employment that became effective July 12, 1985. He argues that Navelex fired him "because he was required to secure medical treatment for his disabled and handicapped condition." Navelex counters that it fired him because he took excessive absences without official leave.
Christie administratively appealed the July 1985 termination and, in doing so, raised the affirmative defense of discrimination on the basis of physical handicap. In addition to reinstatement, back pay and attorney fees, he sought "other recovery as is permitted by law and equity." Neither party timely submitted supporting evidence to the Merit Systems Protection Board. The board decided that "the agency's charges are not sustained; an affirmative defense has not been established; and the removal action is reversed." The board ordered Christie reinstated, which he was as of May 16, 1986, with back pay.
Christie's appealed the board's denial of his discrimination claim to the EEOC. On December 17, 1986, the EEOC sent Christie notice of its decision denying him relief on this claim and also notice of his right to sue in federal court. Pursuant to then-existing regulations, the right-to-sue notice plainly stated that Christie had thirty days to file a complaint in district court. Christie asserts that he filed a request for reconsideration on January 21, 1987, and that the EEOC has not yet acted on that request. We find nothing in the record to support this statement. We do find ...