William M. Mitchell , M.d., Ph .d. v. Vanderbilt University

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 04a0386p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
WILLIAM M. M ITCHELL , M.D., PH .D.,
Plaintiff-Appellant,
v.
VANDERBILT UNIVERSITY ,
Defendant-Appellee.
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No. 03-5503
Appeal from the United States District Court
for the Middle District of Tennessee at Nashville.
No. 01-01578—Robert L. Echols, Chief District Judge.
Argued: September 22, 2004
Decided and Filed: November 10, 2004
Before: MARTIN, COLE, and GIBBONS, Circuit Judges.
_________________
COUNSEL
ARGUED: Tyree B. Harris IV, WILLIS & KNIGHT, Nashville, Tennessee, for Appellant. William N.
Ozier, BASS, BERRY & SIMS, Nashville, Tennessee, for Appellee. ON BRIEF: Alfred H. Knight, Janna
E. Smith, WILLIS & KNIGHT, Nashville, Tennessee, for Appellant. William N. Ozier, BASS, BERRY
& SIMS, Nashville, Tennessee, John C. Callison, VANDERBILT UNIVERSITY, OFFICE OF GENERAL
COUNSEL, Nashville, Tennessee, for Appellee.
_________________
OPINION
_________________
BOYCE F. MARTIN, JR., Circuit Judge. Dr. William M. Mitchell appeals the district court’s
summary judgment in favor of the defendant, Vanderbilt University, in this action under the Age
Discrimination in Employment Act, 29 U.S.C. § 621 et seq. We conclude that Mitchell has failed to allege
any adverse employment action and we therefore AFFIRM the summary judgment of the district court.
I.
Dr. William M. Mitchell, a sixty-nine-year-old member of the Pathology Department at Vanderbilt
University, has filed this case against Vanderbilt University alleging age discrimination, based on a number
of actions primarily taken by his superior, the department chairman, Dr. Doyle Graham.
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Mitchell first joined the faculty of Vanderbilt School of Medicine as an assistant professor in 1966,
and received a promotion to Professor of Pathology in 1978. In 1995, Vanderbilt hired Graham as the new
chairman of the Pathology Department. Soon after this appointment, Graham asked Mitchell whether he
was considering early retirement and Mitchell stated that he had no intention of retiring at any time.
Since that initial meeting, Mitchell claims that Graham engaged in a series of actions constituting
age discrimination. According to Mitchell, Graham’s discriminatory attitude towards older employees was
first observed in late 1997, when Graham had a meeting with Dr. Anh Dao, a colleague of Mitchell’s in the
Department of Pathology. During that meeting, Graham allegedly asked Dao whether he was ready for
retirement. After Dao expressed to Graham a desire to continue working past his sixty-fifth birthday,
Graham allegedly told Dao that “people should retire once they reach sixty-five years of age because they
are not productive after sixty-five.”
Following that initial remark to Dao, Mitchell claims that Graham took specific adverse employment
actions aimed directly at him. First, in 1998, Graham removed Mitchell as a mentor of the M.D./Ph.D. and
Ph.D graduate programs. Second, Graham prevented a M.D./Ph.D student from conducting research in
Mitchell’s laboratory, which Mitchell claims could have helped him in an application for a National
Institutes of Health grant. Third, on January 13, 1999, Graham sent a letter to Mitchell ordering him to
vacate his laboratory and office space and giving Mitchell several employment options, all of which
involved reducing his salary and several of which included early retirement. Vanderbilt claims that the
reason for this letter was that a medical faculty member is expected to bring in at least 80% of his/her salary
from grants, and Mitchell had not contributed more than 25% of his salary from funded research since 1990.
As further evidence of discrimination, Mitchell points to Graham’s own copy of the January 13 letter on
which Graham handwrote in the margins that Mitchell “will be 65 in another year,” noting his date of birth
and the date on which Mitchell would turn sixty-five.
Following receipt of the January 13 letter, Mitchell refused to choose one of the employment-altering
options and filed a grievance with the Vanderbilt Faculty Senate’s Professional Ethics and Academic
Freedom Committee (“Faculty Committee”), claiming that Graham had engaged in age discrimination.
While that grievance was pending before the Faculty Committee, Mitchell requested that Graham consider
him for the vacant position of Medical Director of Clinical Laboratories. On March 19, Graham sent
Mitchell another letter in which Graham notified Mitchell that he had not been chosen for the position, and
that because Mitchell had not selected one of the employment modification options presented in the January
13 letter, he was going to change Mitchell’s appointment to Full Status, Partial Load with a salary reduction
of 49% and decrease his laboratory space as planned.
After learning of the changes and reductions in Mitchell’s laboratory space and status, the Faculty
Committee sent a letter dated June 23 to several University administrators, including the Dean of the School
of Medicine John Chapman, the Associate Vice-Chancellor of Research Lee Limbird, and Graham. The
June 23 letter requested that the administrative actions be postponed until after the Faculty Committee had
completed its investigation of Professor Mitchell’s grievance. In response to the June 23 letter from the
Faculty Committee, Chapman, Limbird and Graham agreed that while there would be no change in
Mitchell’s appointment or salary, the planned reduction of laboratory space would be implemented because
they found that Mitchell’s research effort did not warrant the level of laboratory space assigned to him. As
the district court observed, at the time of the events at issue here Mitchell had not received a significant
research grant award in roughly four years.
After negotiations between Mitchell and University officials failed, Limbird advised Mitchell in a
letter dated July 9 that his laboratory space would be reduced from 2000 square feet to 150 square feet. The
letter did, however, assure Mitchell that additional lab space would be ensured if he secured future grants.
Mitchell timely filed an Equal Employment Opportunity Commission charge on July 22, 1999. On
August 9, Graham removed Mitchell as Medical Director of Vanderbilt Pathology Laboratories Services.

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In an e-mail message to Mitchell on that date, Graham also stated his intention to appoint Mitchell to the
position of Medical Director of the Bedford County Hospital Laboratories, an apparently undesirable post
that would require travel away from Vanderbilt.
Following this action, Mitchell filed a second charge with the Equal Employment Opportunity
Commission on August 19 alleging that the alleged adverse employment actions that occurred that month
were retaliatory. On or about January 19, 2000, Graham placed a special requirement on Mitchell, requiring
that all National Institutes of Health grant applications submitted by Mitchell were to be reviewed by
Graham. Graham claims that the restriction was needed to prevent misstatements and hurriedly prepared
proposals.
On October 11, 2000, Mitchell filed a second grievance with the Faculty Committee seeking an order
to preserve his laboratory space. On December 11, the Faculty Committee denied the first grievance filed
by Mitchell regarding the reduction in laboratory space, finding that the office space was assigned on the
nondiscriminatory basis of research funding. On February 12, 2001, the Faculty Committee denied
Mitchell’s second grievance, allowing the University to reassign Mitchell’s laboratory space.
II.
After receiving a right-to-sue letter in September of 2001, Mitchell filed this complaint in the United
States District Court for the Middle District of Tennessee on December 18, 2001, alleging that Vanderbilt
violated the Age Discrimination in Employment Act, 28 U.S.C. 623(a), by reducing his research lab space,
threatening to reduce his salary, removing him as a mentor of the M.D./Ph.D program, denying him the
opportunity to work with a new M.D./Ph.D student, trying to force him to take early retirement, and failing
to appoint him to the position of Medical Director for Clinical Laboratories. Mitchell also claimed that
Graham retaliated against him for filing the discrimination charge by removing him from the position of
Medical Director for Pathology Laboratory Services, appointing him to the position of Medical Director for
the Bedford County Hospital Laboratories, and by not selecting him as Medical Director of Clinical
Laboratories.
The district court granted Vanderbilt’s motion for summary judgment in an order entered on
March 18, 2003, finding insufficient direct or circumstantial evidence to establish a claim for age
discrimination or retaliation. On appeal, Mitchell claims that the district court erred in granting summary
judgment because he presented evidence of discriminatory animus and adverse employment actions that,
if considered independently or collectively, is sufficient to defeat Vanderbilt’s motion for summary
judgment.
III.
A district court’s grant of summary judgment is subject to de novo review by this Court. Williams
v. London Util. Comm’n, 375 F.3d 424, 427 (6th Cir. 2004). Summary judgment is appropriate where there
is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.
R. Civ. P. 56(c). When reviewing the record, all inferences are to be drawn in the light most favorable to
the nonmoving party. Timm v. Wright State Univ., 375 F.3d 418, 422 (6th Cir. 2004). “If after reviewing
the record as a whole a rational factfinder could not find for the nonmoving party, summary judgment is
appropriate since there is no genuine issue for trial.” Apostolic Pentecostal Church v. Colbert, 169 F.3d
409, 414 (6th Cir. 1999).
The Age Discrimination in Employment Act makes it unlawful for an employer “to discharge any
individual or otherwise discriminate against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such individual’s age.” 29 U.S.C. § 623(a)(1). A
plaintiff may meet his evidentiary burden under the Act in one of two ways. One the one hand, a plaintiff
may offer direct evidence of the employer’s discriminatory motive by producing “evidence, which, if
believed, requires the conclusion that unlawful discrimination was at least a motivating factor in the

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employer’s actions.” Wexler v. White’s Fine Furniture, Inc., 317 F.3d 564, 570 (6th Cir. 2003) (en banc)
(quoting Jacklyn v. Schering-Plough Healthcare Prods. Sales Corp., 176 F.3d 921, 926 (6th Cir. 1999)).
If, on the other hand, a plaintiff is unable to provide direct evidence of an improper motive, he may
offer indirect and circumstantial evidence of such a motive pursuant to the burden-shifting approach
established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). In order to establish a prima facie
case of age discrimination using circumstantial evidence under the McDonnell Douglas framework, a
plaintiff must show that: (1) he is a member of the protected class, that is, he is at least forty years of age;
(2) he was subjected to an adverse employment action; (3) he was qualified for the position; and (4) he was
treated differently from similarly situated employees outside the protected class. Id. at 802; accord Hoskins
v. Oakland County Sheriff’s Dep’t, 227 F.3d 719, 731 (6th Cir. 2000). Because we find that Mitchell has
not suffered an adverse employment action as a matter of law as required whether the plaintiff uses direct
or circumstantial evidence to meet his evidentiary burden, we affirm the district court’s grant of summary
judgment for Vanderbilt.
IV.
In order to establish a prima facie case of age discrimination using either direct or circumstantial
evidence, a plaintiff must show that he was subjected to an adverse employment action. See, e.g., Policastro
v. Northwest Airlines, Inc., 297 F.3d 535, 539 n.1 (6th Cir. 2002) (citing Nguyen v. City of Cleveland, 229
F.3d 559, 562 (6th Cir. 2000)). On appeal, Mitchell alleges several adverse employment actions: (1) the
reduction in his allotted research lab space; (2) the revocation of his mentor status; (3) the loss of his
graduate research assistant; (4) the proposed, but unimplemented reduction in pay and appointment to the
Bedford County Hospital Laboratories; (5) the forced review of his National Institutes of Health grant
applications; (6) his removal from the position of Medical Director of Pathology Services; and (7) his non-
selection as Medical Director of Clinical Laboratories. For the following reasons, Mitchell has failed to
present sufficient evidence suggesting that he suffered an adverse employment action and therefore
summary judgment in favor of Vanderbilt was proper.
An adverse employment action is a “materially adverse change in the terms or conditions of . . .
employment because of [the] employer’s conduct.” Kocsis v. Multi-Care Mgmt., Inc., 97 F.3d 876, 885 (6th
Cir. 1996). Under this standard, a “materially adverse” change in employment conditions “must be more
disruptive than a mere inconvenience or an alteration of job responsibilities.” Id. at 886. (quoting Crady
v. Liberty Nat’l Bank & Trust Co., 993 F.2d 132, 136 (7th Cir. 1993)). “The Sixth Circuit has consistently
held that de minimis employment actions are not materially adverse and, thus, not actionable.” Bowman
v. Shawnee State Univ., 220 F.3d 456, 462 (6th Cir. 2000). As this Court recently pointed out, a “bruised
ego” is simply not enough to constitute an adverse employment action. White v. Burlington N. & Santa Fe
Ry. Co., 364 F.3d 789, 797 (6th Cir. 2004) (en banc) (quoting Kocsis, 97 F.3d at 886).
Viewing the challenged actions either independently or collectively, we hold that Mitchell has failed
to allege a materially adverse employment action in the instant case. First, Mitchell’s allegations that
Vanderbilt deprived him of a graduate research assistant during one summer, revoked his mentor status in
the M.D./Ph.D graduate program, and removed him from his position of Medical Director of Pathology
Laboratory Services simply do not amount to adverse employment actions. As we have pointed out, a
“mere inconvenience or an alteration of job responsibilities is not enough to constitute an adverse
employment action.” Kocsis, 97 F.3d at 886. As the district court found, there is no evidence to suggest
that these actions significantly diminished Mitchell’s material responsibilities at Vanderbilt. Second,
requiring Mitchell to submit for internal review all research applications does not rise to the level of an
adverse employment action. Because of Vanderbilt’s concerns about Mitchell’s history of hurriedly
prepared grant applications, the internal submission requirement is properly considered good institutional
administration rather than a materially adverse employment action.

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Third, Graham’s proposals to reduce Mitchell’s pay, alter his employment status, and reassign him
to serve as Medical Director for the Bedford County Hospital Laboratories were never implemented and
therefore not adverse employment actions. Mere threats of alleged adverse employment action are generally
not sufficient to satisfy the adverse action requirement. In Burlington Northern, this Court rejected the
“ultimate employment decision” requirement in Title VII cases, finding that an employee who was
suspended without pay had suffered an adverse employment action despite subsequently being reinstated
with back pay. Burlington Northern, 364 F.3d at 801. Unlike the plaintiff in Burlington Northern, Mitchell
never suffered an adverse employment action because the proposed actions challenged here were never
implemented. Therefore, those actions do not constitute adverse employment actions.
Fourth, the district court was also correct to conclude that the reduction in Mitchell’s lab
space—from 2000 square feet to 150 square feet—did not amount to an adverse employment action.
Mitchell has pointed to no evidence suggesting that the reduction in laboratory space had a materially
adverse effect on his salary or status of employment at Vanderbilt. To the contrary, Mitchell remains a
tenured member of the Vanderbilt faculty and has not been subject to any reduction in employment benefits.
While the reduction in laboratory space likely had an initial effect on Mitchell’s ability to conduct research,
this, without more, does not constitute a materially adverse employment action.
Moreover, Vanderbilt has offered a legitimate and nondiscriminatory explanation for the reduction
in Mitchell’s laboratory space; namely, Mitchell’s failure to secure research grants to support his salary.
Testimony by several Vanderbilt officials indicated that the University generally expects its doctors to
provide approximately 80% of their salary from external funds. As the district court pointed out, Mitchell
had not reached those levels at least since 1995, indicating that Mitchell was underproductive and was not
qualified for his allotment of lab space. Therefore, even assuming that the reduction in research space was
an adverse employment action, Mitchell was not qualified to receive his previous allotment of lab space and
therefore fails to state a claim for age discrimination based on the reduction of his laboratory space.
Finally, Mitchell’s non-selection for the position of Medical Director of Clinical Laboratories was
not a materially adverse employment action. The district court apparently concluded that the non-selection
was an adverse employment action, declining to consider, at least expressly, whether appointment to that
position would constitute a promotion. Non-selection for a position of employment is not always an adverse
employment action. In cases where the sought position is a lateral transfer, without additional material
benefits or prestige, it would be improper to conclude that a denial of such a transfer would be a materially
adverse action. See Sherman v. Chrysler Corp., 47 Fed. Appx. 716, 721-22 (6th Cir. 2002) (holding that
an employee who failed to introduce evidence showing that denials of lateral transfer requests resulted in
materially adverse changes in terms of employment could not establish adverse employment action).
Mitchell has produced no evidence to show that appointment to the position of Medical Director of
Clinical Laboratories would have been a promotion. While Vanderbilt at oral argument acknowledged that
the position would involve some different duties, we find nothing to indicate that the appointment would
have provided an increased salary, significantly changed responsibilities, a more distinguished title, or a
gain in benefits. See Kocsis, 97 F.3d at 886 (noting factors to consider when determining whether an
employee has suffered an adverse employment action). And while Mitchell’s mere application for the
position indicates that he may have considered the appointment desirable, a plaintiff’s subjective impression
concerning the desirability of one position over another generally does not control with respect to the
existence of an adverse employment action. See, e.g., Policastro, 297 F.3d at 539; Henry v. Ohio Dep’t of
Mental Retardation & Dev. Disabilities, 162 F. Supp. 2d 794, 801 (S.D. Ohio 2000) (citing Kocsis, 97 F.3d
at 886). Thus, because Mitchell has not presented evidence that establishes a question as to whether the
denial of this appointment was materially adverse, summary judgment for Vanderbilt was proper.
Even if Mitchell had established a prima facie case of age discrimination based on his non-selection
as Medical Director of Clinical Laboratories, we note that Mitchell’s age discrimination claim could not
succeed. Vanderbilt presented evidence under the second stage of the McDonnell Douglas framework

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articulating a legitimate, nondiscriminatory reason for not hiring Mitchell. According to Vanderbilt,
Mitchell was not the best qualified applicant for the position because of his dislike of administrative duties,
his apparent disinterest in clinical work, and his tendency to arrive late to meetings. These documented
reasons satisfy Vanderbilt’s burden to produce nondiscriminatory reasons for the employment decision.
Once the employer makes such a showing, the burden then shifts back to the plaintiff to show that the
employer’s reasons are pretextual. To do so, the plaintiff is required to show either: (1) that the proffered
reasons had no basis in fact; (2) that the proffered reasons did not actually motivate the decision; or (3) that
they were insufficient to motivate the employment decision. Manzer v. Diamond Shamrock Chems. Co.,
29 F.3d 1078, 1084 (6th Cir. 1994). Here, Mitchell has failed to produce any evidence from which a jury
reasonably could find that the employer’s reasons were pretextual. Therefore, summary judgment for
Vanderbilt was proper.
V.
For the foregoing reasons, we AFFIRM the summary judgment of the district court.

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