BERNARD MLYNCZAK , THOMAS J. BALAMUT , JURGIS PALIULIONIS , and JOHN D. KASPROWICZ v. SAMUEL W. BODMAN , Secretary, U. S. Department of Energy

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 04-3238 & 04-3369
B ERNARD M LYNCZAK , T HOMAS J.
B ALAMUT , J URGIS P ALIULIONIS ,
and J OHN D. K ASPROWICZ ,
Plaintiffs-Appellants,
v.
S AMUEL W. B ODMAN , Secretary,
U. S. Department of Energy,
Defendant-Appellee.
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
Nos. 97 C 4174 & 97 C 4313—George M. Marovich, Judge.
A RGUED S EPTEMBER 13, 2005—D ECIDED A PRIL 4, 2006
Before P OSNER , R IPPLE , and W OOD , Circuit Judges.
W OOD , Circuit Judge. Argonne National Laboratory, as
its website proclaims, “is one of the U.S. Department
of Energy’s largest research centers.” See
http://www.anl.gov/about.html. Descended from the World
War II Manhattan Project, it now engages in “upwards of
200 research projects, ranging from studies of the atomic
nucleus to global climate change research.” Id. Although

-- 1 of 18 --

2 Nos. 04-3238 & 04-3369
Argonne is operated by the University of Chicago for the
Department of Energy’s Office of Science, the Department’s
Chicago Operations Office maintains general oversight over
the facility. This case concerns four Department of Energy
(DOE) employees who worked at that office, three of whom
were in the Argonne Group, and one of whom was a physi-
cal scientist and program manager. All four contend that
DOE discriminated against them on the basis of their race
(white) and gender (male), and retaliated against them
when they complained. Three also accused DOE of age
discrimination, but they have dropped that theory on
appeal. The district court granted summary judgment in
favor of DOE. Because the court correctly ruled that the
plaintiffs did not raise genuine issues of fact for either their
discrimination claims, for which Title VII, 42 U.S.C.
§ 2000e, provided the exclusive remedy, or the “adverse
action” part of their retaliation claims, we affirm.
I
All four plaintiffs were essentially middle managers at
DOE’s Chicago Operations Office, employed at the GS-13
level. Plaintiff Bernard Mlynczak was a physical scientist
responsible for overseeing the construction of the Advanced
Photon Source facility at Argonne. Plaintiff Thomas
Balamut worked as a general engineer, managing engineer-
ing construction at the Argonne facility. Plaintiff Jurgis
Paliulionis was also a general engineer; he was charged
with assuring that Argonne followed pertinent DOE policies
and regulations in the course of its projects. Finally,
plaintiff John Kasprowicz was a program manager and
physical scientist; his job involved overseeing technical
tests, writing scope-of-work descriptions, and closing out
contracts.

-- 2 of 18 --

Nos. 04-3238 & 04-3369 3
A. Alleged Discriminatory Actions
The focal point of each plaintiff’s discrimination com-
plaint was DOE’s decision to fill three GS-14 positions
within the Argonne Group with women—specifically, Eva
Pavia (Hispanic), Roxanne Purucker (white), and Susan
Heston (white). Anibal Taboas, a male Hispanic, headed the
Argonne Group from 1987 to 1995, and it was he who
allegedly selected the three women as a result of intentional
discrimination against white males. We turn, therefore, to
the circumstances of these three decisions, taking the facts
in the light most favorable to the plaintiffs.
1. Affirmative Action Policies
Underlying the plaintiffs’ complaints about all three
specific hiring decisions is a general argument about DOE’s
affirmative action policy. Briefly put, they claim that this
policy permits unlawful reverse discrimination. As plain-
tiffs’ brief puts it, the DOE Affirmative Action and Diversity
Plans and Accomplishment Reports reflected a “sub-culture”
of reverse discrimination that was statistically driven. The
summary judgment record reflects that in the late 1980s, in
compliance with a directive from the Equal Employment
Opportunity Commission that required all federal agencies
to adopt an affirmative action plan, the Chicago DOE office
prepared such a plan. The plan set forth the office’s goals
for providing employment opportunities for women and
minorities. About ten years later, the office created a more
comprehensive document entitled “Workforce 21,” which
had goals similar to those in the affirmative action policy.
The focus of the affirmative action plans was on ensuring
diversity in the applicant pool for positions at the agency.
Thus, while they stress active recruitment of women and
minority candidates, they do not contain quotas, nor do they
authorize management to give preference to less-qualified
female or minority applicants for jobs or promotions.

-- 3 of 18 --

4 Nos. 04-3238 & 04-3369
Instead, the Chicago DOE office is bound by the rules in the
DOE Merit Promotion Policy, under which selecting officials
may not make a hiring or promotion decision based on race,
color, sex, national origin, age, or disability. Race or sex
may be considered only in the unlikely event that two
candidates are so equally qualified that there is no other
meaningful distinction between them. That said, the
success of managers at the Chicago office in achieving
Equal Employment Office (EEO) goals and objectives was
one of twelve factors taken into account in their perfor-
mance evaluations. “Success” was not limited to hiring or
promotion decisions; it included a wide variety of career
development measures, including recruiting at minority
colleges, developing day-care facilities, or attending a career
fair directed toward women.
Taboas’s scores on this element for the years 1989 to 1993
ranged from “meeting” those objectives to “far exceeding”
them. His evaluations reveal that, during that time period,
26 of the 29 promotions and 22 of 31 new hires were
awarded to women or minorities. The record does not
reveal, however, any detail about what those positions
were, who applied, or the qualifications of the applicants.
Plaintiffs point out that Taboas admitted that he takes an
individual’s race, sex, or minority status into consideration,
and if he does not see adequate diversity in a job category,
he will “look hard” for diversity in the list of qualified
applicants. It is against the background of this policy that
the three contested employment decisions took place.
2. Pavia Hiring
In 1994, a GS-14 Environmental Scientist/Engineer
position opened up within the Argonne Group. In prepara-
tion for filling the position, supervisor Richard Baker
prepared a position description and forwarded it to Eliza-
beth Lyon, a personnel specialist in the office’s human
resources department. The HR department had a choice of

-- 4 of 18 --

Nos. 04-3238 & 04-3369 5
filling the position through a noncompetitive process, under
which it would look only to current federal employees, or a
competitive process, under which it would open the job to
all United States citizens. Taboas decided to use the latter
process, because he wanted to bring in someone from the
outside. Lyon opted for a variant of the competitive process
in which DOE could obtain authority from the federal Office
of Personnel Management (OPM) to perform the recruit-
ment itself. Although the noncompetitive process was
generally used in Chicago, it was not unusual to use the
competitive process.
Normally, once the Chicago office receives OPM’s authori-
zation, it advertises the vacancy externally and posts it on
an internal DOE bulletin board. Vacancy announcements
ordinarily remain open for 21 days. In fact, the particular
Environmental Scientist/Engineer position at issue had
come open some months earlier and had been offered to a
white male in another DOE office, but he had declined the
offer. As a result, DOE had to begin all over again. Once
Lyon began working on it, she accelerated the process,
leaving the announcement open for only nine days. She did
so because OPM had delayed in giving DOE authority to fill
the job, and she was anxious to find someone because she
had heard rumors that there would be a hiring freeze.
The plaintiffs testified that Lyon cut corners and failed to
post the position internally; Lyon could not say whether she
had done so or not, and so we assume that she did not. In
any case, the plaintiffs had access to the external advertise-
ment for the position, but they never saw it, and so none of
them applied.
Six people did submit applications for this position: Pavia
and five others. (Rick Slagle, Lyon’s supervisor, stated that
he believed that there would have been eight to 10 applica-
tions if the position had been posted internally as well.)
Lyon scored the applicants and prepared a selection

-- 5 of 18 --

6 Nos. 04-3238 & 04-3369
certificate for further review. Although Baker normally
would have been responsible for that review, he was on
vacation, and so the certificate went directly to Taboas,
Baker’s boss. Taboas selected Pavia, whom he had met
earlier during a business meeting, for the job. Her qualifica-
tions included a law degree, a bachelor of science degree in
health physics, and almost nine years of work experience
with nuclear and hazardous waste management. Taboas
testified that the latter experience was his primary reason
for selecting her, given the fact that the environmental
scientist position involved project management responsibili-
ties with a significant emphasis on hazardous waste
disposal. He also testified that Pavia was the most qualified
applicant, in his estimation, and that her qualifications far
exceeded those required for the position.
3. Purucker Promotion
The second allegedly discriminatory action involved a
promotion to a GS-14 position for a safety programs branch
manager within the Argonne Group. That position became
available in July 1994. Mlynczak applied for it and made it
to the short list of candidates, but in the end Taboas
selected Roxanne Purucker, without holding interviews. He
concluded that Purucker had superior qualifications for the
job, because she had the necessary background in industrial
safety and hygiene (indeed, she was a certified industrial
hygienist), hazardous waste management, and management
of a sophisticated contractor staff. Mlynczak believes that
his qualifications were equal to or better than Purucker’s
and that she was promoted solely because she is a woman.
He held a bachelor of arts degree in biology and an MBA,
and had received a number of excellence awards for his
work.

-- 6 of 18 --

Nos. 04-3238 & 04-3369 7
4. Heston Appointment
Finally, in October 1994 a position at the Advanced
Photon Source (APS) facility at the GS-14 level became
available. Robert Wunderlich, a white male who reported to
Taboas, appointed Susan Heston to that position, with
Taboas’s approval. This amounted to a lateral transfer for
Heston, who was already working at the GS-14 level
elsewhere in the office. Wunderlich did not advertise the
position, both because he too was concerned about the
anticipated hiring freeze and because he wanted to main-
tain control over the selection. He had worked with Heston
before, and had a favorable impression of her, and he also
counted as a plus the fact that she was already at the GS-14
level and could easily make the lateral move. Mlynczak was
interested in this position, but he was forestalled from
applying for it because it was never posted. He asserts
(without citation to the record) in his brief that Heston was
being bumped out of a job that she was unable to perform.
Once again, he claims that his qualifications far exceeded
Heston’s, as he had been performing the duties called for in
the job and Heston had no experience in accelerator facili-
ties such as the APS. He also asserts, again without a
proper reference to the record, that when he asked why he
was not selected for this promotion, he was told that “the
Secretary of DOE was not awarding any supervisory
positions to white males. . . .” After Heston was selected,
Wunderlich commented to Mlynczak that he had been
“screwed.”
B. Alleged Retaliation
In July 1995, Mlynczak filed complaints with the EEO
against Taboas and Wunderlich, claiming that they had
discriminated against him in the Pavia, Purucker, and
Heston selections. Balamut, Kasprowicz, and Paliulionis
also filed EEO complaints with respect to Pavia’s hiring.

-- 7 of 18 --

8 Nos. 04-3238 & 04-3369
After these complaints were lodged, all four plaintiffs
claimed that individuals in the Chicago office retaliated
against them in various ways. For example, in August 1995,
Balamut sent a letter to Richard Gallegos, the Director of
the Office of Civil Rights and Equal Employment Opportu-
nity at DOE’s Western Area Power Administration, express-
ing his fear that Taboas would engage in violent reprisals
because of the EEO complaints. During the same month,
Balamut participated in a conference call with a former
director of security for DOE, Edward McCallum, who told
Balamut that Taboas had committed various security
breaches during McCallum’s tenure, including improper use
of a firearm.
Gallegos forwarded a copy of Balamut’s letter to Cherri
Langenfeld, the manager of the Chicago office; Langenfeld
in turn first met with the director of security, and later
provided Taboas with a copy of the letter that identified
Balamut as the author. A couple of days later, Balamut sent
Langenfeld a letter asking that she keep the Gallegos
correspondence confidential and not disclose it to Taboas,
but this was obviously too late.
In the end, not much came of this letter aside from a
petition that was circulated urging the employees to
support Taboas and various acts by which co-workers
ostracized Balamut and called him unflattering names
(such as “cockroach”). He also claims that his performance
ratings have deteriorated, cooperation at the workplace has
diminished, and he lost bonus opportunities until he was
transferred to a different position. Later, in 1996, Taboas
sued Balamut for defamation and other state-law claims. A
DOE official told Kasprowicz that Taboas would drop the
suit if all EEO matters were also dropped.
II
On the basis of this record, the district court granted
summary judgment for DOE. Because our review of that

-- 8 of 18 --

Nos. 04-3238 & 04-3369 9
decision is de novo, we proceed immediately to the argu-
ments plaintiffs have made on appeal. Rather than struc-
turing the discussion plaintiff-by-plaintiff, we look instead
at the four alleged grounds for relief: discrimination with
respect to the three different promotion decisions and
retaliation.
All four plaintiffs have based their claims on Title VII,
§ 717, of the Civil Rights Act of 1964, 42 U.S.C. § 2000e,
which prohibits discrimination based on race, color, reli-
gion, sex, and national origin in federal employment. See 42
U.S.C. § 2000e-16. Although Mlynczak asserts that he is
also entitled to assert a claim directly under constitutional
equal protection principles based on the due process clause
of the Fifth Amendment, see Bolling v. Sharpe, 347 U.S.
497 (1954), the district court held that this avenue was
foreclosed by the Supreme Court’s decision in Brown v.
General Services Administration, 425 U.S. 820 (1976). The
district court was correct: Brown squarely holds that § 717
“provides the exclusive judicial remedy for claims of
discrimination in federal employment.” 425 U.S. at 835.
Nothing in the Supreme Court’s later opinion in Adarand
Constructors, Inc. v. Pena, 515 U.S. 200 (1995), which does
not even cite Brown and which concerned the equal protec-
tion rights of private federal contractors, changed that rule.
Although claims brought by federal employees are subject
to slightly different procedural prerequisites, which appar-
ently were satisfied in these cases (or, as non-jurisdictional
points, the government has now forfeited), the substance of
the federal employee’s right in § 717 is the same as the
more familiar rights assured to all other employees, found
in § 42 U.S.C. § 2000e-2(a)(1). The rights there assured
apply to men as well as women, see Oncale v. Sundowner
Offshore Servs., Inc., 523 U.S. 75 (1998), and to whites as
well as members of various minority groups, see McDonald
v. Santa Fe Trail Transp. Co., 427 U.S. 273, 278-79 (1976).

-- 9 of 18 --

10 Nos. 04-3238 & 04-3369
As we noted in Gore v. Indiana University, 416 F.3d 590
(7th Cir. 2005), however, conventional analysis
is not very helpful for so-called reverse-discrimination
claims. Because it is the unusual employer who discrim-
inates against majority employees, a male plaintiff
alleging gender discrimination must show something
more than the fact that he is gendered. . . . Rather, the
plaintiff in such cases must show background circum-
stances that demonstrate that a particular employer
has reason or inclination to discriminate invidiously
against whites [or men] or evidence that there is
something “fishy” about the facts at hand.
Id. at 592 (internal quotations and citations omitted).
The plaintiffs recognize this burden, at least implicitly,
and attempt to meet it through their reliance on the DOE
affirmative action policy and the incentives the agency gives
to managers to enhance the diversity of the workforce.
Otherwise, our analysis follows the well-established path
for any discrimination claim. Here, however, rather than
belabor the question whether the plaintiffs are proceeding
under the so-called “direct” method of proving discrimina-
tion, which includes the possibility of showing discrimina-
tion by circumstantial evidence, see Rudin v. Lincoln Land
Cmty. Coll., 420 F.3d 712, 720 (7th Cir. 2005); Troupe v.
May Dep’t. Stores Co., 20 F.3d 734 (7th Cir. 1994), or the
“indirect” method launched by McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973), we have examined the record
from both perspectives simultaneously.
We are unpersuaded that any of the so-called direct
(meaning circumstantial) evidence of discriminatory intent
was enough to save the plaintiffs’ cases. Langenfeld, for
example, made a number of comments indicating that she
was happy that women were being hired, that she would
favor a minority candidate over a nonminority candidate,
and that it was good for white men to experience a little

-- 10 of 18 --

Nos. 04-3238 & 04-3369 11
discrimination. These comments may reflect small-minded-
ness on her part, but they fall short of showing that the
Chicago office discriminated against these plaintiffs.
Langenfeld was not one of the decisionmakers for any of the
employment decisions at issue here. See, e.g., Crabtree v.
Nat’l Steel Corp., 261 F.3d 715, 723 (7th Cir. 2001) (“Stray
remarks made by nondecisionmakers are not evidence that
the decision had a discriminatory motive.”). Although
Taboas was a decisionmaker and the evidence showed that
he was philosophically favorable to the hiring of minorities,
that does not prove that any particular decision he made
was for discriminatory reasons. Wunderlich’s comment to
Mlynczak that he had been “screwed” over the Heston
decision is similarly insufficient. Wunderlich did not refer
to Mlynczak’s race or gender in making this statement, so
the comment could just as easily have been an expression
of sympathy, or a reflection that it was tough to lose out to
an equally qualified competitor. Mlynczak’s belief that
Wunderlich was implicitly complaining about the affirma-
tive action policy when he uttered the remark is too conjec-
tural to serve as evidence of race or gender discrimination.
As we have noted before, “if the subjective beliefs of plain-
tiffs in employment discrimination cases could, by them-
selves, create genuine issues of material fact, then virtually
all defense motions for summary judgment in such cases
would be doomed.” Mills v. First Fed. Sav. & Loan Ass’n of
Belvidere, 83 F.3d 833, 841-42 (7th Cir. 1996) (quoting
Visser v. Packer Eng’g Assocs., 924 F.2d 655, 659 (7th
Cir. 1996)). Our evaluation will therefore focus first on the
question whether the plaintiffs put before the district court
evidence that, if believed, would permit a trier of fact to
conclude that any one of them (or more) failed to obtain a
position because of unlawful racial discrimination. We then
address the retaliation claims.

-- 11 of 18 --

12 Nos. 04-3238 & 04-3369
A. Pavia
None of the four plaintiffs applied for the position that
was eventually awarded to Pavia, because Taboas and Lyon
chose to use the “competitive process” and failed to post the
opening on the Chicago office’s internal bulletin board. The
plaintiffs’ real complaint is therefore about the loss of an
opportunity to apply for the job, rather than the failure of
any one of them to succeed in winning it. The plaintiffs
argue that the evidence, viewed favorably to them, shows
that the real reason why Taboas and Lyon used the “com-
petitive process” was as a means of discriminating against
white men. It is almost impossible to follow the citations in
their brief that allegedly support this allegation, however,
as those citations for the most part seem to refer to para-
graphs in various pleadings. In order to avoid summary
judgment, of course, they were required to point to eviden-
tiary material—documents, depositions, affidavits, and the
like—that could support their position.
The existence of DOE’s affirmative action policy alone is
not enough to permit a trier of fact to attribute this type of
illegal manipulation to the decisionmakers. First, the
simple fact that such a policy exists does not prove that
intentional discrimination is the reason why a particular
individual was not hired or promoted. See Whalen v. Rubin,
91 F.3d 1041, 1045 (7th Cir. 1996). The aggrieved person
must establish a link between the policy and the employ-
ment decision about which he or she is complaining. See id.
Second, the DOE policies here were of the type that expand
the pool of persons under consideration, which is permitted,
see Duffy v. Wolle, 123 F.3d 1026, 1038-39 (8th Cir. 1997),
as long as it is not followed by an explicit policy of prefer-
ring the minority candidates in the group, see Rudin, 420
F.3d at 721-22. The DOE policies, as we noted earlier, were
explicit in the opposite direction: once the pool was created,
managers were enjoined not to base their hiring or promo-
tion decisions on a forbidden characteristic. To the extent

-- 12 of 18 --

Nos. 04-3238 & 04-3369 13
that managers like Taboas were rewarded for improving
workplace diversity, plaintiffs have introduced nothing
refuting the government’s evidence that a wide variety of
measures were covered, including such innocuous steps as
establishing day-care facilities (which presumably help all
working parents, not just mothers).
We see nothing inherently discriminatory about a decision
to use an open, nationwide, competitive application process
as opposed to one restricted to internal candidates. The
facts that the application period was shorter than usual and
that Taboas made the decision rather than the vacationing
Baker do not support a finding of discrimination against
these plaintiffs, or white men in general, as these factors
equally affected minority and women internal candidates.
Plaintiffs do not discuss how Pavia compared with the other
five applicants whose resumes were before Lyon and
Taboas, with respect to either their relative qualifications
for the position or race and gender, therefore it is impossi-
ble for us to conclude that Taboas favored her because he
had already met her once (a nondiscriminatory reason in
any event) or because she was female and Hispanic. In
these circumstances, we consider the qualifications the
various plaintiffs had for this position (and how they
compared to Pavia’s) to be beside the point. Discrimination
against incumbent employees is not one of the grounds
covered by § 717, and we see no other way that a rational
trier of fact could find that discrimination explained the
decision to use the open competitive process, even though
one result of that decision was the failure of any of these
plaintiffs to secure the open position.
B. Purucker
Mlynczak’s argument in support of his claim relating to
Purucker’s promotion is so abbreviated that we are tempted

-- 13 of 18 --

14 Nos. 04-3238 & 04-3369
to say it is waived. The sum total of the discussion in the
opening brief of appellants is as follows:
Mlynczak’s other discrimination claim relates to the
promotion of Roxanne Purucker a white female to the
GS-14 position of Safety programs Branch Manger [sic]
in the mid-1990’s. Mlynczak asserts, and DOE denies,
that his qualifications were at least equal to if not
better than Purucker’s and that she was promoted only
because she is a woman. DOE disputes Mlynczak’s
qualifications and denies that Purucker was promoted
on any basis but merit. [Appellants’ Brief at 20.]
* * *
The facts pertaining to the additional Mlynczak
discrimination claims are different than those asserted
for Pavia but the law and citations to authority are the
same. Mlynczak argues the facts without repeating the
citations to authority. [Appellants’ Brief at 34.]
The second passage cited is followed by general assertions
that Taboas and Langenfeld went out of their way to
discriminate against white males, and that Mlynczak was
well qualified for all of the positions in question.
If, generously construed, this is an argument that a trier
of fact could find that Purucker was not as qualified for that
position as Mlynczak, and thus that discrimination was the
explanation for the choice, we finding it wanting. In
Millbrook v. IBP, Inc., 280 F.3d 1169 (7th Cir. 2002), this
court addressed “comparative qualifications” arguments in
detail. Id. at 1177-83. We held there that
where an employer’s proffered non-discriminatory
reason for its employment decision is that it selected
the most qualified candidate, evidence of the applicants’
competing qualifications does not constitute evidence of
pretext unless those differences are so favorable to the
plaintiff that there can be no dispute among reasonable

-- 14 of 18 --

Nos. 04-3238 & 04-3369 15
persons of impartial judgment that the plaintiff was
clearly better qualified for the position at issue.
Id. at 1180 (internal quotations omitted). Only this rule, we
concluded, would ensure that the role of the court did not
degenerate into the inappropriate one of “super personnel
department.” Id. at 1181.
We see nothing in Ash v. Tyson Foods, Inc., 126 S.Ct.
1195 (2006), that requires reconsideration of Millbrook’s
approach to qualifications evidence. In that decision, the
Court reiterated that “qualifications evidence may suffice,
at least in some circumstances, to show pretext.” Id. at
1197. The Court of Appeals for the Eleventh Circuit had
colorfully described those circumstances as existing “only
when the disparity in qualifications is so apparent as
virtually to jump off the page and slap you in the face.” Id.
(internal quotations omitted). The Court disapproved that
particular formulation, calling it “unhelpful and imprecise
as an elaboration of the standard for inferring pretext from
superior qualifications.” Id. Although the Court expressly
refused to provide an authoritative standard, id. at 1198, it
did set forth with apparent approval other articulations of
the standard, which require the plaintiff to show that her
qualifications are “clearly superior,” or that she is “signifi-
cantly better qualified” for the job, or that “no reasonable
person, in the exercise of impartial judgment, could have
chosen the candidate selected over the plaintiff for the job
in question.” Id. at 1197-98. Our Millbrook standard is
essentially the same as the last of these, and thus, as we
read Ash, is consistent with the law.
Even in light of Ash, therefore, we conclude that
Mlynczak’s evidence of comparative qualifications was
insufficient. Finally, for the reasons we have already given,
adding the affirmative action policy that DOE had in place
to the picture is not enough to create an issue of fact where
none existed before.

-- 15 of 18 --

16 Nos. 04-3238 & 04-3369
C. Heston
Mlynczak’s discussion of the Heston position is almost as
skimpy. We have already explained why Wunderlich’s
comment, after Heston was selected, that Mlynczak had
been “screwed” is not enough to put him over the summary
judgment hurdle. The fact that the deputy project manager,
Robert Thompson, thought that Mlynczak was better
qualified than Heston, while better evidence than anything
Mlynczak had for the Purucker appointment, still falls
short under Millbrook, particularly because Thompson was
not the decisionmaker. DOE offered nondiscriminatory
reasons for its decision to transfer Heston laterally within
the agency, from one GS-14 position to another, and to
move quickly in light of an impending hiring freeze.
Mlynczak speculated that the true reason behind Heston’s
move was her inadequate performance in her old job, but he
offers no competent evidence to show that. He points to
some evidence showing that, once in the new job, Heston
was “mediocre” and spent most of her time “studying and
traveling in pursuit of a DOE sponsored degree.” This after-
the-fact account (assuming for the sake of argument that
Mlynczak’s evidence competently showed that she was
performing badly) does not show, however, that DOE did
not genuinely believe its reasons for moving her when it
did.
D. Retaliation
With respect to this part of the case, we have little to add
to the district court’s analysis. That court correctly acknowl-
edged that Title VII prohibits, among other things, an
employer from discriminating “against any of [its] employ-
ees . . . because [they have] made a charge, testified,
assisted, or participated in any manner in an investigation,
proceeding, or hearing under this subchapter.” 42 U.S.C.
§ 2000e-3(a). In order to go forward with their case, the

-- 16 of 18 --

Nos. 04-3238 & 04-3369 17
plaintiff has two options: first, more directly, he may show
that (1) he engaged in protected activity and (2) suffered the
adverse action in question; or second, he may show that (1)
he engaged in the protected activity, (2) afterwards only he,
and not any similarly situated employee who did not file a
charge [or otherwise engage in protected activity] was
subjected to an adverse action, even though (3) he was
performing the job satisfactorily. Stone v. City of Indianapo-
lis Public Utils. Div., 281 F.3d 640, 644 (7th Cir. 2002). It is
uncontested that the plaintiffs all engaged in protected
activities. We therefore focus on whether they suffered any
actionable adverse action.
Retaliation plaintiffs normally complain about adverse
actions related to their employment—in shorthand, adverse
employment actions—and this case is no exception. Not
every workplace slight is actionable, however. We have
often noted that “mere unhappiness and inconvenience are
not actionable under Title VII.” See Haywood v. Lucent
Techs., Inc., 323 F.3d 524, 532 (7th Cir. 2003) (quoting
Smart v. Ball State Univ., 89 F.3d 437, 441 (7th Cir. 1996)).
However embarrassing it may have been to Balamut for the
letter he wrote to Gallegos to fall into Taboas’s hands, and
however apprehensive the plaintiffs may have been about
an intemperate reaction from Taboas, the fact is that
nothing ever happened apart from his filing the defamation
lawsuit a year later. The lawsuit—at least in the absence of
a showing not made here that it was independently an
abuse of process—was not the kind of adverse action that
the retaliation statute reaches. Similarly, Kasprowicz’s
recollection of an incident two years after Taboas saw the
letter in which Taboas stared at both him and Mlynczak
does not qualify as an adverse action related to employ-
ment. The fact that co-workers may have shunned them is
also insufficient. See Griffin v. Potter, 356 F.3d 824, 830
(7th Cir. 2004) (“General hostility and comments do not
qualify as actionable adverse employment actions unless

-- 17 of 18 --

18 Nos. 04-3238 & 04-3369
the hostility was severe and pervasive.”). Finally, with
respect to Balamut’s claim that his performance ratings
declined after Taboas received the letter, in Haywood we
rejected the idea that negative performance appraisals
alone could qualify as an adverse employment action. 323
F.3d at 532.
III
In closing, we emphasize the fact that our review of these
events, like the district court’s, is necessarily limited to the
record that the parties put before us. Our de novo review of
that record satisfies us that the district court correctly
granted summary judgment in favor of the defendant
Department of Energy. We therefore A FFIRM the judgment
of that court.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—4-4-06

-- 18 of 18 --