James B. Twisdale v. JOHN W. SNOW , Secretary of the Treasury

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-1736
J AMES B. T WISDALE ,
Plaintiff-Appellant,
v.
J OHN W. S NOW ,
Secretary of the Treasury,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 00-C-860-Y/F—Richard L. Young, Judge.
____________
A RGUED D ECEMBER 10, 2002—D ECIDED A PRIL 10, 2003
____________
Before F LAUM , Chief Judge, and P OSNER and W ILLIAMS ,
Circuit Judges.
P OSNER , Circuit Judge. James Twisdale, an employee of
the Internal Revenue Service, brought suit against his
employer under Title VII of the Civil Rights Act of 1964,
charging that black supervisors harassed him because he
is white and retaliated against him for his opposing a
black employee. The district court granted summary judg-
ment for the defendant.
The pertinent facts, stripped to bedrock and viewed as
favorably to Twisdale as the record will permit (which is

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2 No. 02-1736
not very favorably), are as follows. In 1997 Twisdale was
chief of the IRS’s Quality Measurement Branch in India-
napolis; his pay grade was GS-14. One of the employees
whom he supervised was a black woman named Barry
Madison. She filed a charge of employment discrimina-
tion on grounds of race and sex with the IRS’s equal em-
ployment office. The charge was investigated, and Twis-
dale participated in the investigation in various ways,
for example by giving information to the EEO investigator.
Twisdale was skeptical of Madison’s claim. Later he was
instructed by his superiors to investigate an alleged ethical
violation by Madison. He did so and determined that she
had indeed committed an ethical violation, though a minor
one, and he issued a reprimand to Madison—precipitating
a charge of discrimination by her against him. He claims
that as a result of his opposition to Madison’s claim of
discrimination, as well as his reprimanding her and be-
ing white, he was subjected to various humiliations by his
black supervisors. The humiliations of which he complains
included audits of some of the programs that he admin-
istered, a delay in giving him “acting supervisor” assign-
ments, which apparently were prized, and above all the
removal from his purview of the Disclosure Office, which
had three employees and is responsible for protecting
taxpayers’ privacy, and of the Problem Resolution Pro-
gram, a program for dealing with taxpayer complaints.
Madison’s original complaint of discrimination was even-
tually resolved in her favor, but there was never a deter-
mination that Twisdale had discriminated against her,
although the IRS agreed to remove his reprimand of her
from her personnel file.
The period of harassment is alleged to have continued
through August of 1999. Yet during this period Twisdale
received generous performance-related bonuses and cov-
eted assignments to IRS national task forces, though he

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No. 02-1736 3
argues that he received these assignments because the
removal of the Disclosure Office and the Problem Res-
olution Program from his supervision left him with un-
wanted time on his hands. The following year he was
promoted to a more responsible job at the next-higher pay
level, GS-15, and while the promotion required him to
relocate to West Virginia he had made clear in applying
for the promotion that he was willing to move and indeed
he had listed 27 cities, though none in West Virginia, to
which he would be happy to transfer. He accepted the
transfer to West Virginia and remains employed by the
IRS there, in a position as we said of greater responsibil-
ity than he had in Indianapolis.
There is one legal issue that is both clean and novel,
and although the government reserved it rather than ar-
guing it as an alternative ground for upholding the dis-
trict court’s decision, it was thoroughly ventilated at the
argument of the appeal and being a pure issue of law we
can with propriety decide it despite its not having been
briefed. See Singleton v. Wulff, 428 U.S. 106, 121 (1976);
Sestric v. Clark, 765 F.2d 655, 657 (7th Cir. 1985); Krumme
v. WestPoint Stevens Inc., 238 F.3d 133, 142 (2d Cir. 2000);
cf. Hill v. American General Finance, Inc., 218 F.3d 639, 642,
645 (7th Cir. 2000).
The provision of Title VII that concerns retaliation for-
bids an employer “to discriminate against any of his em-
ployees . . . because he has made a charge, testified, as-
sisted, or participated in any manner in an investigation,
proceeding, or hearing under” the statute. 42 U.S.C.
§ 2000e-3(a). (The retaliation provisions of the other prin-
cipal federal employment discrimination statutes are ma-
terially identical. See 29 U.S.C. § 623(d) (Age Discrimina-
tion in Employment Act); 29 U.S.C. § 794(d) (Rehabilitation
Act); 42 U.S.C. § 12203(a) (Americans with Disabilities Act).)

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4 No. 02-1736
Read literally, the provision protects even an employee
who like Twisdale participates in an investigation on the
side of the employer rather than on the side of the em-
ployee who made the charge of discrimination. Suppose
hypothetically that Twisdale had opposed Barry Madi-
son’s charge of race and sex discrimination because he is
a racist and a sexist and that he had been fired for having
opposed her charge. On his view of the scope of the re-
taliation provision, he would be entitled to reinstatement.
He is claiming in effect the absolute immunity that pros-
ecutors and judges enjoy when performing prosecutorial
and judicial functions, respectively.
How such an interpretation could promote the policy
of Title VII is beyond us. The statute has the limited pur-
pose of preventing certain forms of discrimination. The re-
taliation provision backs up this central thrust by protect-
ing employees who invoke the statutory machinery for
rectifying violations. We cannot find any hints in the case
law, the legislative history, interpretations by govern-
ment agencies, or scholarly commentary of any purpose
of protecting employees whose resistance to charges of
discrimination made by their coworkers provokes the
employer’s ire. Until this case, so far as we can deter-
mine, everyone concerned in the administration of Title
VII and cognate federal antidiscrimination statutes had
assumed that the retaliation provision was for the protec-
tion of the discriminated against, and not their opponents.
E.g., Robinson v. Shell Oil Co., 519 U.S. 337, 346 (1997); Heuer
v. Weil-McLain, 203 F.3d 1021, 1023 (7th Cir. 2000); Petersen
v. Utah Dept. of Corrections, 301 F.3d 1182, 1189 (10th Cir.
2002); Castellano v. City of New York, 142 F.3d 58, 69 (2d Cir.
1998). As in the hypothetical case we put, the employer
would be sitting on a razor’s edge if it could not discipline
employees whose opposition to discrimination charges

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No. 02-1736 5
placed the employer in jeopardy of violating an employee’s
statutory rights.
Twisdale did participate in an investigation of a discrim-
ination charge, and so comes within the literal terms of
section 2000e-3(a). But awkwardly, since the first act
protected by the section is making a charge, which sug-
gests that the subsequent acts listed—testifying, assisting,
and participating—refer to acts in support of the charge.
He would be on solider ground if instead of “because he
has made a charge” the statutory words were “because he
has made or opposed a charge.” In effect he asks us to
insert the term that we have italicized. But, as we have
explained, this would merely gum up the statutory works.
Perverse and absurd statutory interpretations are not to be
adopted in the name of literalism; they merely show the
limitations of literalism as a mode of interpretation.
Twisdale has another string to his bow, however; for
remember that he is arguing that he was harassed on
account of his race and not just on account of his partic-
ipation in the investigation of Barry Madison’s charge
of discrimination. (His further charge that he was harassed
for reprimanding Madison seems to be a variant of his
race charge. If not, it would have no purchase in the stat-
ute.) That claim fails too, because the harassment of which
he complains was not severe enough to have altered the
terms or conditions of his employment. Title VII does not
create a remedy against harassment as such; the harass-
ment must—this is explicit in the statute—amount to dis-
crimination “ ‘with respect to [the employee’s] compensa-
tion, terms, conditions, or privileges of employment.’ 42
U.S.C. § 2000e-2(a)(1). The cases paraphrase this require-
ment either as ‘a tangible employment action,’ that is, ‘a
significant change in employment status, such as hiring,
firing, failing to promote, reassignment with significantly

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6 No. 02-1736
different responsibilities, or a decision causing a signifi-
cant change in benefits,’ or as a ‘materially adverse em-
ployment action.’ ” Herrnreiter v. Chicago Housing Authority,
315 F.3d 742, 743-44 (7th Cir. 2002) (case citations omitted);
see also Clark County School Dist. v. Breeden, 532 U.S.
268, 270-71 (2001) (per curiam); Allen v. Chicago Transit
Authority, 317 F.3d 696, 701 (7th Cir. 2003); Silk v. City of
Chicago, 194 F.3d 788, 807-08 (7th Cir. 1999); Gu v. Boston
Police Dept., 312 F.3d 6, 14 (1st Cir. 2002).
To determine whether this requirement has been satisfied
requires consideration of the employee’s total workplace
environment; and here the performance bonuses, the task
force appointments, and the promotion to a more responsi-
ble and better-paying job go quite far enough to cancel,
in any objective assessment, any unpleasantness that
Twisdale might have experienced because his programs
were audited and one program and three employees were
removed from his purview and he didn’t get as many
acting-supervisor assignments as he would have liked. In
any event, that unpleasantness, even if not balanced by re-
wards both tangible and intangible, falls short of the level
of severity required to trigger judicial intervention under
Title VII. Twisdale emphasizes the diminution of his re-
sponsibilities; and it is true if paradoxical that lightening
a worker’s load can constitute actionable harassment,
Dahm v. Flynn, 60 F.3d 253, 256-57 (7th Cir. 1994)—but
only if by depriving him of the opportunity to maintain
and improve his skills it impedes his career, see Grayson
v. City of Chicago, 317 F.3d 745, 750 (7th Cir. 2003);
Herrnreiter v. Chicago Housing Authority, supra, 315 F.3d at
744; Freedman v. MCI Telecommunications Corp., 255 F.3d
840, 847-48 (D.C. Cir. 2001), which did not happen here,
as indicated by his promotion. Grayson v. City of Chicago,
supra, 317 F.3d at 750. The statute does not protect the
hypersensitive employee who is not deliberately targeted

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No. 02-1736 7
by the employer from the irritations endemic to the em-
ployment relation. Pryor v. Seyfarth, Shaw, Fairweather &
Geraldson, 212 F.3d 976, 978 (7th Cir. 2000); Andrews v.
City of Philadelphia, 895 F.2d 1469, 1483 (3d Cir. 1990).
A FFIRMED .
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—4-10-03

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