Michael Wells v. Robert Gates

Filing 920090710

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-1358

MICHAEL E. WELLS, Plaintiff - Appellant, v. ROBERT M. GATES, Secretary of Defense, Defendant - Appellee.

Appeal from the United States District Court for the District of Maryland, at Greenbelt. Roger W. Titus, District Judge. (8:07cv-00619-RWT)

Argued:

March 26, 2009

Decided:

July 10, 2009

Before MOTZ and AGEE, Circuit Judges, and Thomas D. SCHROEDER, United States District Judge for the Middle District of North Carolina, sitting by designation.

Affirmed by unpublished per curiam opinion.

ARGUED: Lenore Cooper Garon, GEBHARDT & ASSOCIATES, LLP, Washington, D.C., for Appellant. Jason Daniel Medinger, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee. ON BRIEF: Myrrel C. Hendricks, GEBHARDT & ASSOCIATES, LLP, Washington, D.C., for Appellant. Rod J. Rosenstein, United States Attorney, Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Michael E. Wells appeals the district court's grant of

summary judgment in favor of the Department of Defense ("DOD") on his claims of retaliation, in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e to 2000e-17 ("Title VII"), and hostile work environment, in

violation of the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. §§ 621-34 ("ADEA"). For the reasons

explained below, we affirm.

I. Wells was an Industrial Security Specialist with the DOD's Defense Security Service ("DSS") for almost sixteen and one-half years, until his retirement in 2008. In that position, he

performed various national security management functions, such as inspecting defense contractor facilities and operations for compliance classified putting with federal regulations was born during on on the handling 20, of

documents. at age

Wells

February of

1948,

him

fifty-seven

most

the

conduct

relevant to his claims. From 2001 through 2008, Wells' supervisor was Field Office Chief Horace Bearzi. can best be By all accounts, Wells and Bearzi had what as a less than cordial working

described

relationship.

Although Wells and Bearzi had been at loggerheads 2

for years, the conduct giving rise to Wells' claims began in early 2005. Starting in March 2005, Bearzi repeatedly ordered

Wells to stop using the modifier "Senior" with respect to his title "Industrial Security Specialist" on the grounds that it was no longer an officially recognized position. to comply. his Wells failed

On August 8, 2005, after receiving the approval of representatives of the DSS Office of Human

supervisor,

Resources and Office of General Counsel, and upper management, Bearzi issued a Letter of Reprimand ("LOR") to address Wells' continued use of the nonexistent title and his signing of

official letters requiring Bearzi's signature.

On August 31,

2005, Bearzi conducted Wells' mid-year performance review and noted that he had nine "seriously overdue" security assessment reports, including some that were 120 days late, even though such reports were to be completed within thirty days of the inspection. On September 1, 2005, again Bearzi with issued the Wells a Letter of of his

Instruction

("LOI"),

concurrence

supervisor, representatives of the Office of Human Resources and Office of General Counsel, and upper management. Bearzi specifically identified the overdue In the LOI, and cited

reports

Wells for improperly storing national security files at home. To improve Wells' performance and ensure national security,

Bearzi (1) required Wells to return the files and forbade him 3

from routinely retaining files at home; (2) prohibited him from writing reports, scheduling activities, or performing any other duties at home; (3) revoked his authority to park a governmentowned vehicle at home; (4) instructed Wells to brief Bearzi at the beginning of each day as to his planned activities and at the end of each day as to his accomplished activities; and (5) withdrew approval of Wells' compressed work schedule. On that

same day, Wells requested annual leave for the following three weeks, which Bearzi approved. The next day, September 2, 2005, Wells contacted a

counselor of the DSS Office of Diversity Management ­ its Office of Equal Employment Opportunity ("EEO"). On September 21, he

went out on sick leave, and approximately two weeks later he canceled other previously scheduled leave (for an annual hunting trip) because, he said, a check-up revealed potentially serious health issues. 2005, alleging He filed a formal EEO complaint on September 30, that the LOR and LOI were retaliatory and

claiming that he was subject to a hostile work environment. 1 When his annual leave was about to expire, Wells requested additional sick leave through December 2, 2005. He based his

The EEO summarily rejected the retaliation claim because Wells had not participated in prior protected conduct and, after a lengthy investigation, denied the hostile work environment claim as well.

1

4

back-to-back

requests

on

vague

references

to

"[p]hysician

imposed medical leave" and cryptic doctor's notes referring to his "hypertension, diabetes, hypercholesterolemia, [and]

obesity."

(J.A. 182, 184-87, 191-92.)

Bearzi approved each of

the requests.

Though allegedly unable to work, however, Wells

was healthy enough to testify at length on behalf of a co-worker at both an EEOC deposition and a hearing and appeared

unannounced for a departmental meeting at work during which, according to Bearzi, he said to he was "feeling growing fine." suspicions These that

developments

contributed

Bearzi's

Wells was malingering. When extended, Wells this requested time yet again that 13, his sick and leave be

beyond

December

2005, 2

through

January 20, 2006, Bearzi consulted the Office of Human Resources and Office of General Counsel. Based on their advice, he asked

Wells to provide further documentation by December 20, 2005, to substantiate his medical condition. already submitted missed seventy-two medical Bearzi noted that Wells had days of and work, had had not

calendar

adequate

documentation,

reported

unbidden to work-related activities on three separate occasions.

Wells requested annual leave from December 5, through December 13, 2005, which was approved by Bearzi. claimed that this annual leave was for medical reasons.

2

2005, Wells

5

Bearzi cautioned Wells that he could grant no further sick leave without the requested documentation. Even though Bearzi reminded Wells of the looming deadline through e-mails and a telephone call, Wells failed to provide any documentation. Accordingly, by letter of December 22, 2005,

Bearzi denied Wells any further sick leave. On December 30, 2005, Wells belatedly submitted further

medical documentation and requested sick leave from December 29, 2005, to January 31, 2006. Unfortunately, Wells' doctor's note

stated only that he "[h]as been ill and unable to work from 12/29/05 to 1/31/06." (J.A. 212.) Based on the advice of the

Office of Human Resources and Office of General Counsel, Bearzi again denied the sick leave request and asked for further

medical documentation.

On January 27, 2006, Wells submitted a

doctor's note indicating that he was suffering from intestinal bleeding, which Bearzi relied on to grant sick leave as of

February 1, 2006. On January He 24, filed 2006, a Wells again contacted on March an 14, EEO 2006,

counselor.

formal

complaint

alleging that he suffered disparate treatment, retaliation, and a hostile work environment. the EEO concluded and that denial After an extensive investigation, request leave for were further not medical to

Bearzi's of sick

documentation

related

Wells' age or any protected conduct. 6

After more than ten months of continuous leave, dating back to early September 2005, Wells returned to work in July 2006. Wells filed the present case on March 12, 2007. His

complaint alleges that the DOD violated the ADEA and Title VII when, based on his age and in retaliation for his prior

protected EEO activities, it subjected him to (1) retaliation and disparate treatment; (2) a hostile work environment; and (3) adverse personnel actions. In lieu of answering, the Government

moved to dismiss, or in the alternative, for summary judgment. Following several months of briefing and a hearing, the district court considered all matters of record, including several

hundred pages of the extensive EEO files, denied Wells' request for additional discovery on the grounds he failed to articulate any specific need, and granted the Government summary judgment on all claims. Wells timely brings this appeal. pursuant to 28 U.S.C. § 1291. We exercise jurisdiction

II. Wells judgment challenges on his the district for court's grant and of summary work

claims

retaliation

hostile

7

environment. 3

We review the grant of summary judgment de novo,

"viewing the facts and inferences drawn therefrom in the light most favorable to the non-moving party." F.3d 733, 742 (4th Cir. 2006). Baqir v. Principi, 434

Summary judgment is appropriate

only if "there is no genuine issue as to any material fact and . . . the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). A. We address first Wells' retaliation claim. 4 In the absence

of direct evidence, we analyze a Title VII retaliation claim under the burden-shifting framework set forth in McDonnell Price v.

Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). Thompson, 380 F.3d 209, 212 (4th Cir. 2004).

To establish a

prima facie case of retaliation, a plaintiff must demonstrate that (1) he engaged in protected conduct; (2) his employer took

The district court held that the disparate treatment claim lacked merit because Wells was not subjected to an adverse employment action and offered no specific evidence that similarly situated employees had received better treatment. Wells waives this claim on appeal inasmuch as he only mentions the term "disparate treatment" in the statement of the issues in his initial brief and never follows up with any argument. Fed. R. App. P. 28(a)(9)(A) (requiring the argument section of an opening brief to contain the "appellant's contentions and the reasons for them"); see Edwards v. City of Goldsboro, 178 F.3d 231, 241 n.6 (4th Cir. 1999). The Government does not dispute, and we therefore assume, that a federal employee may pursue a retaliation claim under Title VII. Baqir, 434 F.3d at 747 n.16.
4

3

8

an adverse employment action against him; and (3) the protected conduct was causally connected to the adverse action. Mineta, 547 F.3d 220, 229 (4th Cir. 2008). second employee adverse, element, would which "a have in plaintiff found this the must show Ziskie v.

To satisfy the a reasonable materially might have

that

challenged means it

action well

context

dissuaded a reasonable worker from making or supporting a charge of discrimination." Burlington N. & Santa Fe Ry. Co. v. White,

548 U.S. 53, 68 (2006) (internal quotation marks and citation omitted). 5 If the plaintiff establishes a prima facie case, the

burden shifts to the employer to demonstrate a legitimate nonretaliatory reason for the adverse employment action. 434 F.3d at 747. Baqir,

If the employer does so, the plaintiff must Id.

prove that this reason was a pretext for retaliation.

The Government objected in the district court to the application of the Burlington Northern standard to a Title VII retaliation case involving a federal employee. Although this court has applied this standard to federal employees in several unreported cases, e.g., Caldwell v. Johnson, 289 F. App'x 579, 591 n.13, 592 (4th Cir. 2008) (citing cases), the issue has not been reached in a reported case. Ziskie, 547 F.3d at 229. Because the Government has not renewed its objection on appeal, we assume that the Burlington Northern standard applies for purposes of this appeal.

5

9

1. Wells claims he created a genuine issue of material fact as to the second element of the prima facie case. 6 briefing is less than clear, he appears to Although his argue that he

suffered materially adverse employment actions when Bearzi (a) requested further documentation of his medical condition, (b) refused to lift his LOI restrictions, and (c) denied a portion of his requested sick leave. a. Wells requesting contends further that Bearzi's December 6, 2005, letter a

medical

documentation

constituted

materially adverse employment action.

The district court held

that this request was not a materially adverse employment action because it would not have dissuaded a reasonable employee from filing an EEO complaint. The district court also noted that

Wells, in fact, was not inhibited and subsequently filed another EEO complaint. A materially adverse employment action is one that "well might have dissuaded a reasonable N., worker" 548 U.S. from at engaging 68 in

protected

conduct.

Burlington

(internal

quotation marks and citation omitted).

An employer's action is

not materially adverse, however, if it amounts to "petty slights For purposes of this appeal, we assume that Wells has met the first and third elements of the prima facie case.
6

10

or minor annoyances that often take place at work and that all employees experience." 7 Id. at 68. To make that assessment, we Id. at 69.

look to the context of the claimed actions.

We agree with the district court that Bearzi's request for further medical documentation Bearzi's medical was not a materially advised his adverse Wells to

employment obtain

action.

letter

simply

appropriate

documentation

from

physician Standing

before any additional medical leave could be approved.

alone, this request did not impose any disciplinary action on Wells Chaple or v. otherwise Johnson, have 453 F. a tangible Supp. 2d employment 63, 72-73 consequence. (D.D.C. 2006)

(holding that "speculation of a future bad act" does not support a Title VII a retaliation claim). from Such a request in would not

dissuade conduct.

reasonable

worker

participating

protected

Moreover, the mere fact that Wells participated in the

protected conduct of testifying at EEOC proceedings and filing an EEO complaint does not immunize him from a reasonable request by his employer. b. Wells claims next that he suffered a materially adverse employment action when Bearzi refused to lift the restrictions

This anti-retaliation provision "protects an individual . . . from retaliation that produces an injury or harm." Burlington N., 548 U.S. at 67.

7

11

previously imposed in the LOI.

Wells concedes that the initial

imposition of these restrictions predated his participation in protected conduct and could not serve as the basis of a Title VII retaliation claim. He claims, however, that he eventually

satisfied the terms of the LOI yet the restrictions remained in place until he retired two years later. The record to reflects enable Wells that to Bearzi finish imposed the LOI

restrictions

significantly

overdue

work, prohibit him from storing national security files at home, and ensure that he completed his assignments on time. Nothing

in the LOI indicates that Bearzi would lift the restrictions when the overdue reports were completed or after a fixed period of time, such as the end of the fiscal year, as Wells argues. Bearzi instead stated that he intended to lift the LOI when Wells cleared his backlog and remained current. that his reports were unfinished when he Wells concedes from sick

returned

leave and identifies nothing in the record indicating that he ever completed them. Thus, the district court correctly

concluded that Bearzi's refusal to lift these restrictions did not constitute a materially adverse employment action. c. Wells next argues that Bearzi's denial of his request for sick leave from December 13, 2005, through January 31, 2006, constituted a materially adverse employment action. 12 Although

the district court acknowledged that Wells raised the denial of sick leave as a retaliatory act, it concluded, without

specifically addressing the argument, that no materially adverse employment action existed. Wells claims that he was entitled to the grant of sick leave for this six-week period. He asserts that he initially

provided sufficient documentation on December 5, 2005, pointing to an e-mail, denied. leave request also form, argues and that doctor's he note, which

Bearzi

Wells

provided

further

documentation in his sick leave request of December 30, 2005, which Bearzi likewise denied. This six-week period included the

Christmas holidays and ultimately resulted in the loss of more than $8,000 in gross income, which Wells otherwise would have been entitled to receive as compensation. The Government argues

that the denial was not a materially adverse employment action because it did not dissuade Wells from participating in

protected conduct after some of the alleged retaliatory acts. In Burlington Northern, the Court an held that . the . . antifrom

retaliation

provision

"protects

individual

retaliation that produces an injury or harm."

548 U.S. at 67.

Loss of compensation could qualify as such an injury or harm. Id. at 73. Although "the fact that an employee continues to be

undeterred in his or her pursuit of a remedy . . . may shed light as to whether the actions are sufficiently material and 13

adverse to be actionable," Somoza v. Univ. of Denver, 513 F.3d 1206, 1214 (10th Cir. 2008), the court ultimately must apply an objective standard. Burlington N., 548 U.S. at 68, 69; Steele

v. Schafer, 535 F.3d 689, 696 (D.C. Cir. 2008) (stating that the "materially adverse" standard does not require consideration of the employee's "asserted imperviousness to acts of

retaliation"). Based reasonable on the financial would not impact, be we cannot from say that a in

worker

dissuaded

engaging

protected conduct by the loss of this compensation from denial of sick leave. Burlington N., 548 U.S. at 73. To this extent, For the and we

we disagree with the conclusion of the district court. reasons that follow, however, it is not dispositive,

agree with the district court's ultimate decision. 2. We find that the Government has demonstrated a legitimate, non-retaliatory reason for Bearzi's actions. enforce generally applicable employment An employer may against its

policies

employees without creating a cause of action for retaliation. Niswander v. Cincinnati Ins. Co., 529 F.3d 714, 719, 728-29 (6th Cir. 2008); Hervey v. County of Koochiching, 527 F.3d 711, 725 (8th Cir. 2008); McCann v. Tillman, 526 F.3d 1370, 1376 (11th Cir. 2008); Gates v. Caterpillar, Inc., 513 F.3d 680, 686-87 (7th Cir. 2008); Joseph v. Leavitt, 465 F.3d 87, 91 (2d Cir. 14

2006); see also Valles-Hall v. Ctr. for Nonprofit Advancement, 481 F. Supp. 2d 118, where to 155 (D.D.C. 2007) failed a sick (denying to Title VII

retaliation medical

claim

employee support

provide

further in

documentation

leave

request

accordance with company policy); Chaple, 453 F. Supp. 2d at 7273 (same). At times pertinent here, the generally applicable

regulation on sick leave documentation was codified at 5 C.F.R. § 630.403 (2005). 8 That provision allows an agency to "grant

sick leave only when supported by administratively acceptable evidence." 5 C.F.R. § 630.403(a). Although an agency "may

consider an employee's certification . . . as administratively acceptable evidence," the agency "may also require a medical certificate or other administratively acceptable evidence as to the reason for an absence" that exceeds three working days. Id.

Bearzi complied with the generally applicable regulations governing sick leave requests. Human
8

Upon the advice of the Office of of General Counsel, Bearzi

Resources

and

the

Office

Bearzi's December 6, 2005, letter referred to 5 C.F.R., part 339, as the basis for his request for further medical documentation. Those regulations more specifically concern an individual's medical qualifications and physical well-being. E.g., 5 C.F.R. § 339.301(b) (authorizing agencies to require a medical examination for positions that have "medical standards or physical requirements"). It is apparent, however, that Bearzi's error was inadvertent, and his request for additional documentation was well-founded on this record for the reasons infra.

15

requested

further

medical

documentation

from

Wells

in

the

December 6, 2005, letter. physician complete the

Bearzi directed Wells to have his Form WH-380 to verify his

attached

medical condition and its impact on his ability to perform the essential duties by of his position. 20, 2005. Bearzi He also requested reminded this Wells

documentation

December

several times to comply with the request. Wells had neither submitted the

Yet by December 21, information nor

requested

provided the form to his physician. deny further leave.

Only after this did Bearzi

Accordingly, when viewing the facts in the

light most favorable to Wells, it is apparent that the district court properly held that the Government established a

legitimate, non-discriminatory basis for Bearzi's actions. 3. Wells argues that Bearzi's basis for denying sick leave was merely pretextual. This is demonstrated, Wells claims, by

Bearzi's refusal to grant sick leave even after the requested medical documentation was provided. The problem with Wells'

argument is that he did not provide his e-mail, leave request form, and doctor's note, until December 30, 2005. This was ten

days after the stated deadline and eight days after the denial of his sick leave request. Moreover, Wells failed to submit the

16

documentation on Form WH-380, as required, 9 or to demonstrate that he provided all of the information requested by Bearzi. Wells next argues that Bearzi's ultimate approval of his sick leave as of February 1, 2006, demonstrates that the prior denial was pretextual. 10 Although Wells claims that he did not

provide any different medical documentation in the approved sick leave request of January 27, 2006, than he had in the previous denied requests, Bearzi stated that the approved request

included a doctor's note indicating that Wells was suffering from intestinal bleeding. requests in question, The record does not contain the leave foreclosing any comparison of the

documentation.

Thus, Wells has not shown that Bearzi knew of

Wells argues that Form WH-380 was inapplicable to his situation. Although the instructions to Form WH-380 indicate that it is "optional" and is used for requests under the Family and Medical Leave Act, nothing in the record indicates that it could not be used to solicit information for sick leave requests as well. Indeed, the record indicates that DOD agencies, such as the DSS, commonly use Form WH-380 to request information about an employee's medical condition. Any suggestion of pretext is further dispelled by the fact that Bearzi's request that Wells use Form WH-380 was made upon the advice of the Office of Human Resources. On a related note, Wells claims that Bearzi's change of his status from "absent without leave" ("AWOL") to "leave without pay" ("LWOP") demonstrates pretext. Wells states that this alteration implies that Bearzi could not justify AWOL status. However, Wells fails to explain how the initial AWOL status was unjustified or to identify how the change of his classification to a more favorable status could be evidence of pretext.
10

9

17

the extent of the medical condition prior to the end of January or that the prior sick leave requests contained adequate medical documentation. In addition, the record contains no evidence that Bearzi failed to apply the generally applicable regulation to request further medical documentation from similarly situated employees who had requested extended sick leave. had previously required to another support that To the contrary, Bearzi to leave failed provide further For

employee a sick

medical these

documentation we

request. to

reasons,

conclude

Wells

demonstrate

evidence of pretext, and the district court properly granted summary judgment on Wells' retaliation claim. B. We now turn to Wells' claim that he was subjected to a hostile work environment based on his age, in violation of the ADEA, 11 and of work in retaliation VII. for his protected court merit conduct, that in the

violation hostile

Title

The claim

district lacked

held

environment

because

Wells

offered no evidence that the alleged harassment was based on his

The Government does not dispute that Wells may bring a hostile work environment claim under the ADEA. "[W]e have previously assumed, without deciding, that a hostile work environment claim is generally cognizable under the ADEA for plaintiffs age forty or older." Baqir, 434 F.3d at 746 n.14 (citing Burns v. AAF-McQuay, Inc., 166 F.3d 292, 294 (4th Cir. 1999); Causey v. Balog, 162 F.3d 795, 801 n.2 (4th Cir. 1998)).

11

18

age or that it was severe or pervasive. age and retaliation - separately. 1. To make out a hostile work

We address each basis -

environment

claim

under

the

ADEA, a plaintiff must adduce evidence that "(1) he experienced unwelcome harassment; (2) the harassment was based on his . . . age; (3) the harassment was sufficiently severe or pervasive to alter the conditions of his employment and to create an abusive atmosphere; and (4) there is some basis for imposing liability on the employer." E.I. DuPont de Baqir, 434 F.3d at 745-46 (citing Bass v. & Co., 324 F.3d 761, 765 (4th Cir.

Nemours

2003)). Wells grounds his age-based harassment claim on the

following actions: "Senior charging Industrial "blatant and

Bearzi's instruction not to use the title Security Specialist;" issuance of an the a LOR LOI Human

insubordination;" posting on a

imposition board

of in

restrictions;

bulletin

Resources employee's office that Wells had filed a grievance regarding those restrictions. 12 impose such restrictions on Wells argues that Bearzi did not similarly situated employees who

Although Wells also argues that the denial of his sick leave contributed to the hostile work environment, he claims that it was retaliatory and not based on age.

12

19

were

not

over

the

age

of

forty

and,

thus,

not

within

the

protected class under the ADEA. We find that, no matter how these actions are viewed,

Wells' claim fails because he never demonstrates a genuine issue of material fact that age was a factor in the alleged specific claim for

harassment. evidentiary harassment." is there

"[C]onclusory support, cannot

statements, support an

without

actionable

Causey, 162 F.3d at 802. evidence, that Bearzi

Wells never alleges, nor made any age-related

any

comments.

Wells also fails to identify any evidence that Bearzi

accorded different treatment to similarly situated employees who were not within the protected class. Although Wells claims that

he presented evidence that younger co-workers were allowed to use the "Senior Industrial Security Specialist" title and were not subject to the same restrictions, nothing in the record

identifies even one co-worker under Bearzi's supervision who was under the age of forty, employed as an Industrial Security

Specialist at pay grade GS-12, guilty of delinquent reports even remotely as overdue, and involved in as court many episodes of

insubordination.

Thus,

the

district

properly

granted

summary judgment on Wells' hostile work environment claim based on age.

20

2. To make out a hostile work environment claim based on

retaliation under Title VII, a plaintiff must show that "(1) he experienced unwelcome harassment; (2) the harassment was . . . [in retaliation for protected conduct]; (3) the harassment was sufficiently severe or pervasive to alter the conditions of his employment and to create an abusive atmosphere; and (4) there is some basis for imposing liability on the employer." Baqir, 434

F.3d at 745-46 (citing Bass, 324 F.3d at 765); see Von Gunten v. Maryland, 243 F.3d 858, 869-70 (4th Cir. 2001), overruled on other grounds by Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006). Wells alleges that he was subjected to unwelcome harassment in retaliation for his protected conduct. He points again to

Bearzi's denial of the requested sick leave and refusal to lift the LOI restrictions. 13 Even if this alleged unwelcome harassment could be said to have been in retaliation for protected conduct, Wells fails to show that it was severe or pervasive. To meet this third

element of the prima facie case, the harassment must be severe The Government argues that the imposition of the LOR and LOI restrictions were not retaliatory actions for purposes of the hostile work environment claim. Although Wells alleges other unwelcome harassment based on his age, he relies on the LOR and LOI only to the extent of Bearzi's refusal to lift the restrictions after Wells returned from sick leave.
13

21

or pervasive enough to create a subjectively and objectively hostile or abusive work environment. Harris v. Forklift Sys.,

Inc., 510 U.S. 17, 21-22 (1993); Von Gunten, 243 F.3d at 870. We examine all of the circumstances to determine whether the work environment was objectively hostile. These circumstances

"may include the frequency of the . . . [retaliatory] conduct; its severity; or whether a mere it is physically utterance; threatening and whether or it

humiliating, unreasonably Harris, 510

offensive with an The

interferes U.S. at

employee's harassment

work must

performance." be extreme.

23.

Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998). Wells may have subjectively perceived his work environment to be hostile, but he fails to demonstrate that the alleged harassment was objectively hostile and abusive. Wells' sick leave request under the Bearzi denied applicable

generally

regulations governing such requests and, in doing so, relied on the advice of the Office of Human Resources and the Office of General Bearzi Counsel also to request Wells further many medical times to documentation. provide the

reminded

information.

When Wells failed to comply by the deadline and

subsequently refused to do so, Bearzi again relied on the advice of the Office of Human Resources and the Office of General

Counsel to deny the sick leave request.

Thus, the denial was

22

the direct result of Wells' inaction and did not reflect an objectively hostile atmosphere. Wells also fails to show that the refusal to lift the LOI restrictions was objectively hostile and abusive. Federal

courts "do[] not sit as a kind of super-personnel department weighing the prudence of employment decisions made by

[employers] charged with employment discrimination."

DeJarnette Bearzi up with

v. Corning Inc., 133 F.3d 293, 299 (4th Cir. 1998). imposed the restrictions work, home, to enable Wells from that to catch

seriously security

overdue files at

prohibit and

him

storing he

national his

ensure

completed

assignments on time.

The record contains no evidence that these Based on Wells' documented

deficiencies were ever remedied.

shortcomings, the refusal to lift the LOI restrictions did not "unreasonably Accordingly, judgment on interfere" the Wells' district hostile with court work his work performance. summary based on

properly environment

granted claim

retaliation.

III. Wells argues finally that the district court prematurely granted summary judgment before allowing him the opportunity to conduct discovery. We review the district court's refusal to

allow discovery prior to the entry of summary judgment for abuse 23

of discretion.

Harrods Ltd. v. Sixty Internet Domain Names, 302 We will not reverse the district

F.3d 214, 244 (4th Cir. 2002).

court "unless there is a clear abuse of discretion or[] unless there is a real possibility the party was prejudiced by the denial of the extension." Ingle v. Yelton, 439 F.3d 191, 195

(4th Cir. 2006) (citation omitted). Federal Rule of Civil Procedure 56(f) authorizes a court to refuse summary judgment "where the nonmoving party has not had the opportunity to discover information that is essential to his opposition." n.5 (1986). Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 To avail itself of this relief, the nonmoving party

must set forth specific reasons for discovery in an affidavit, Fed. R. Civ. P. 56(f), and "may not simply assert in its brief that discovery was necessary." Nguyen v. CNA Corp., 44 F.3d

234, 242 (4th Cir. 1995) (internal quotation marks and citation omitted). Although "the failure to file an affidavit under Rule

56(f) is itself sufficient grounds to reject a claim that the opportunity Applications for & discovery Serv. Co., was 80 inadequate," F.3d 954, 961 Evans (4th v. Cir. Techs. 1996)

(internal quotation marks and citation omitted), a Rule 56(f) affidavit may not be necessary under certain circumstances.

Harrods, 302 F.3d at 244-45. Wells concedes that he never filed a Rule 56(f) motion and affidavit. The record also contains no evidence that he raised 24

the need for additional discovery in his brief in opposition to the Government's summary judgment motion. attached a witness what list to his facts brief, would And although Wells his be list gained fails to

articulate

additional

through

discovery or how those facts would enable him to survive summary judgment. To the contrary, it merely contains vague assertions Thus, we cannot say

as to the listed individuals' relevance.

that the district court abused its discretion in refusing to allow discovery prior to entering summary judgment for the

Government.

IV. For the foregoing reasons, we conclude that Wells failed to create a genuine or issue of work material fact that he suffered Nor

retaliatory

hostile

environment

discrimination.

does he show that the district court abused its discretion in refusing to allow him discovery prior to the entry of summary judgment. Accordingly, we affirm the district court's grant of

summary judgment. AFFIRMED

25