The Superior Court has employed Hodge for twenty-three years.  He began his career as an
1
accounting division payroll clerk from 1986 to 1995.  Under the Superior Court’s Study Leave
Program, he attended law school and received his degree in 1995.  He then served as a Superior
Court judicial law clerk from 1995 until 1999, when he was hired as Assistant General Counsel.
1
IN THE DISTRICT COURT OF THE VIRGIN ISLANDS
DIVISION OF ST. THOMAS AND ST. JOHN 
VERNE A. HODGE, JR. 
:
CIVIL ACTION 
:
No. 07-87 
v. 
:
:
SUPERIOR COURT OF THE
:
VIRGIN ISLANDS
:
    
MEMORANDUM 
Juan R. Sánchez, J. 
  September 11, 2009
Plaintiff Verne A. Hodge, Jr. contends his current employer, Defendant Superior Court of
the Virgin Islands, retaliated against him by failing to promote him to General Counsel, among other
reprisals, due to his internal report of unlawful and unethical conduct by Superior Court personnel.
He complains about an ordinary workplace grievance, not conduct protected under the
Whistleblowers Protection Act, 10 V.I.C. §§ 121, et seq. (WPA).  Because the record does not show
he engaged in any protected activity, or the Superior Court took any adverse employment actions in
retaliation against him, I grant summary judgment in the Superior Court’s favor, dismissing Hodge’s
Amended Complaint with prejudice.    
FACTS 
The Superior Court Office of General Counsel employs Hodge as Assistant General Counsel,
a position he has held for ten years.  Hodge is disgruntled, believing he has been wrongly denied
1
promotion to General Counsel.  He believes he is entitled to the position and is better suited for the
job than the Superior Court’s current General Counsel, Queen E. Terry, Esquire.
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He asserts he “faithfully executed” and “actually performed the duties of General Counsel from June
2
15, 2003, until February 5, 2007, a period of nearly four years (three years and seven months to be
exact).”  Pl.’s Br. at 11; Am. Compl. ¶ 49.  
But see Deft.’s Br. at 5 n.2 (“Justice Cabret, the former Presiding Judge of the Superior Court,
3
vociferously denies that she ever made a promise to Plaintiff that she would promote him to General
Counsel of the Court.”).   
2
Hodge believes he is entitled to the position because he acted as if he were General Counsel
for nearly four years before Terry was hired to fill the vacant position.  Terry was hired on February
2
3, 2007, and arrived at the Superior Court as General Counsel on February 5, 2007.  During the four-
year period, however, Hodge’s title remained the same, Assistant General Counsel. 
Hodge disputes Terry was the better candidate for General Counsel.  He does not dispute,
however, the Court had legitimate reasons for hiring Terry.  In Terry’s prior service as counsel to the
Virgin Islands Governor, she gained substantial experience in drafting and reviewing legislation.
The Superior Court found this experience and knowledge best served the Court’s new structure and
the Virgin Islands judiciary as a whole.  Terry also possessed years of trial and litigation experience
as a public defender and prosecutor, experience the Superior Court highly values for its operational
needs.  
Terry’s arrival at the Superior Court proved to be a catalyst for Hodge’s accusations against
the Superior Court.  When former General Counsel Leon A. Kendall became a Superior Court Judge
in 2003,  Hodge expressed interest in the vacant General Counsel position to former Presiding Judge
Maria M. Cabret.  Hodge says she promised to promote him and gave him the key to the General
Counsel’s office in January 2004.  Although he occupied the General Counsel’s physical office, the
3
position remained unfilled until Terry was hired.  Three months after Terry’s arrival, Hodge filed his
complaint on May 7, 2007.  
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Hodge opposed prosecution of the disciplinary action a number of times during the period, October
4
through December 2006, moving to dismiss for lack of evidence and sending memoranda to his
colleagues advocating dismissal.  He advocated for dismissal of the disciplinary action in his
November 30, 2006 memorandum because:
 
Deputy Marshal Sackey merely engaged in jargon and aphorisms common to the
Virgin Islands without indicating the slightest intent to advise or conspire with others
to break the law.  While common jargon of the Virgin Islands as used by Mr. Sackey
may be easily misconstrued, it does not, in the opinion of this officer, constitute
unbecoming conduct.
Am. Compl., Ex. A.  His position was rejected by his colleagues.  A hearing was held in the
disciplinary action on December 12, 2007, and Sackey’s employment was terminated by the January
12, 2007 Decision and Order of Administrative Hearing Officer Jeannette M. Davila, Esquire.
3
Hodge complains the Superior Court retaliated against him for sending a memorandum, dated
November 30, 2006, to Presiding Judge Rhys S. Hodge, which he claims is a protected report under
the WPA.  In his memo, Hodge charged Administrative Judge Darryl D. Donohue and Court
Administrator Glenda L. Lake, Esquire had improperly interfered with his sole prosecutorial
discretion to dismiss an internal disciplinary action instituted in 2006 against Superior Court Deputy
Marshall Lorel Sackey, thereby “defeating the proper administration of justice.”  Am. Compl. ¶ 9.
He also charged Donohue and Lake exerted undue pressure on Hearing Officer Jeannette M. Davila,
Esquire to go forward with the action, contrary to Hodge’s advice and motions to dismiss.  Among
4
numerous, generalized charges of his colleagues’ “unlawful” and “unethical” conduct, he charged
they had violated Sackey’s “constitutional due process right to an independent and unbiased hearing
officer.”  Pl.’s Br., Ex. A at 1-2.
Hodge charged the Superior Court with violations of “ethical and legal standards required
for administrative disciplinary actions, including constitutional due process requirements” based on
events surrounding one meeting which took place on November 17, 2006, among Judge Donohue,
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Administrator Lake, and Sackey’s supervisor, Chief Marshal Lawrence A. Walcott, Jr.  Am. Compl.
¶ 7.  They met to reconsider Hearing Officer Davila’s November 16, 2006 Order dismissing the
disciplinary action.  After their meeting, Walcott filed a pro se motion for reconsideration of Davila’s
order of dismissal, seeking reinstatement of the action without consulting Hodge.  Davila, by her
November 17, 2006 Order, vacated her earlier order of dismissal and reinstated the disciplinary
action.
Hodge found fault with this procedure, complaining the meeting should not have been held
unless he and Sackey’s personal counsel were present.  He proclaimed to his colleagues he had
exclusive control over all communications among Superior Court personnel involved in the
disciplinary action.  He insisted all communications with his “client,” in this instance Walcott as
Sackey’s supervisor, should properly go first and only through him, the Superior Court’s lawyer.
He accused his colleagues of usurping his authority as the Superior Court’s lawyer and breaching
his purported sole discretion to prosecute disciplinary actions. 
Hodge’s November 30, 2006 memo was prepared in the course and scope of his assigned job
duties.  Even he contends he is ordinarily required, among other duties, “to prosecute disciplinary
proceedings . . . and review [the Superior Court’s] in-house procedures, rules, and conduct for legal
and ethical sufficiency.”  Am. Compl. ¶ 3. 
Hodge challenges a number of actions taken by Superior Court personnel, all of which he
views as retaliation for his purportedly protected November 30, 2006 report of allegedly unlawful
and unethical conduct, including the following reprisals: 
(a)
Defendant’s humiliating eviction of Plaintiff, and the removal of Plaintiff’s
effects from his office. 
(b)
Defendant’s humiliating relocation to unsuitable and intolerable worksites. 
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On December 19, 2006, Darryl D. Donohue ended his service as Administrative Judge and became
5
Presiding Judge of the Superior Court, sitting in St. Croix.
5
(c)
Defendant’s malicious order that Plaintiff work under intolerable working conditions
after receiving notice from Plaintiff of those intolerable conditions. 
(d)
Defendant’s failure to promote Plaintiff despite his timely, thorough and satisfactory
performance of his duties, despite its promise to promote Plaintiff. 
(e)
Defendant’s hiring of a less experienced attorney in matters particular to the Judicial
branch than Plaintiff to the position promised to Plaintiff. 
(f)
Defendant’s removal of Plaintiff’s supervisory capacity. 
(g)
Defendant’s hindering of the performance of Plaintiff’s duties. 
(h)
Defendant’s refusal to provide a reasonable ADA accommodation. 
(i)
Defendant’s refusal to grant relief from its historical pattern of discriminatory denial
of benefits and privileges of its professional employment to Plaintiff. 
(j)
Defendant’s misrepresentations in ruse to force Plaintiff to resign.
     
Am. Compl. ¶ 53.  
Hodge complains his personal effects were removed from the General Counsel’s office to
make room for Terry’s arrival on February 5, 2007.  He does not dispute the Superior Court had a
legitimate reason for doing so, admitting there was a manifest lack of professional work space on
Court premises.  Instead, he complains about the way it was done, during his absence from the office,
in an “unprofessional, duplicitous, and disrespectful manner.”  Pl.’s Br. at 7.  
This removal came about when Presiding Judge Donohue asked to meet with Hodge on
5
February 5, 2007.  Hodge complied, traveling to Donohue’s St. Croix chambers in time for the
appointment, only to discover he had to wait some three hours before the meeting commenced.
Donohue then informed him Terry had been hired, she had arrived on the job, and Hodge’s personal
effects were being removed as they spoke.  Hodge found this experience to be “humiliating,” a
“Gestapo-like surprise eviction.”  Am. Compl. ¶ 23.
Hodge complains all of his assigned work spaces, except the General Counsel’s office, have
been unsuitable for sundry reasons.  On February 5, 2007, his personal effects were placed on a desk
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6
in the Legal Secretary’s office, adjacent to the General Counsel’s office in the Alexander A. Farrelly
Justice Complex, which houses the Superior Court in St. Thomas.  He had worked at this desk from
the time he started his career as Assistant General Counsel in 1999 until 2004, when he acquired the
key to the General Counsel’s physical office.  He complained this desk lacked the privacy and
confidentiality necessary for his work, and he was distracted by hallway and visitor noise.  He was
further distracted by individuals entering the office to meet with the General Counsel.  The Court
accommodated his concerns on the weekend of February 18-19, 2006, constructing a private office
space around the desk area by building a wall with a door.  
Once relocated to the newly constructed work space on February 20, 2007, he complained
it was “a cramped and unventilated storeroom.”  Am. Compl. ¶ 41.  He found it too small and he
could not meet in the room with other attorneys and Superior Court personnel.  He complained the
room lacked ventilation, was intolerably hot, and allowed distractions from office personnel coming
in to get supplies.  The Court accommodated his concerns by ventilating the space.  He found the
ventilation intolerably cold.  The Court adjusted the ventilation for Hodge.  Although Hodge admits
the adjusted ventilation was adequate for the performance of his duties, he complained the work
space remained “no more than a cramped storeroom.”  Am. Compl. ¶ 45.  
Because Hodge could not have General Counsel Terry’s office, and there was a shortage of
other office space suitable to him, he asserted his entitlement to work from home and telecommute
at will.  To this day, he maintains he is entitled to telecommute whenever he sees fit or needs to do
so.  He offers this as a practical solution and a reasonable ADA accommodation for his chronic
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Hodge contends telecommuting would allow him to “avoid many of the irritants of [the Court’s]
6
premises, such as dander from the flocks of pigeons that have apparently taken over the place, the
frequent cold and flu symptoms of co-workers and the public, the exhaust from vehicles on the main
thoroughfare that runs directly outside [Hodge’s] new ground floor office’s window, and the
unregulated emissions of cruise ships from the nearby West Indies Corporation dock.”  Pl.’s Br. 
at 14.  
See Pl.’s Br., Ex. B at 2 (“[T]he Court informally accommodated my well known chronic asthmatic
7
condition, as best it could, by allowing me to work after hours, and on weekends and holidays to
make up for my absences.  Unfortunately, given the on-site nature of accounting tasks [among his
duties as a payroll clerk during 1986-1995], my frequent absences and hospitalizations during that
time are well documented by the Court.”).   
See Pl.’s Br., Ex. B at 2 (“Informal telecommuting, however, has left me vulnerable to unfair
8
accusations and suspicions that I am not doing my work, despite my excellent record of job
performance.”); see also Am. Compl. ¶ 36 (noting Former General Counsel, Leon A. Kendall
complained about Hodge’s time and attendance and refused to approve Hodge’s time-sheets unless
Hodge performed his duties from the desk in the Legal Secretary’s office).  
7
asthma condition.  It is undisputed, however, telecommuting is not one of the employment benefits
6
offered by the Superior Court, such as medical insurance and retirement benefits.  
Hodge alleges his asthma and consequent need to telecommute were well known to the
Superior Court.  He frequently worked from home from 1995 through March 2, 2007.  Although
7
this informal arrangement left him open to accusations and suspicions he was not doing his work,
he persists in his preference for telecommuting, instead of working on Superior Court premises. 
8
By letter dated March 2, 2007, Presiding Judge Donohue denied Hodge’s request to
telecommute, and directed him to report to the Superior Court for work every day during the normal
workweek, pending further written notice.  Donohue gave him permission to work anyplace he chose
on Court premises, if Hodge did not want to work at his assigned desk.  Hodge alleges Donohue
refused his request to telecommute in retaliation for Hodge’s November 30, 2006 report of allegedly
unlawful and unethical conduct by his colleagues.  
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8
On May 5, 2008, Hodge was relocated from the “storeroom” to an office on the first floor
of the Family Court building, which was previously reserved for Judge Ishmael A. Meyers.  Hodge
remains in this office today.
Hodge does not dispute his present office has adequate space, ventilation, and privacy for the
performance of his duties, but complains his office is not accompanied by suitable “benefits,
privileges, and perks.”  Pl.’s Br., Ex. B at 1; Am. Compl. ¶ 46.  He alleges the Superior Court has
subjected him to a historical pattern of discrimination and antagonism by denying him these benefits
for years, even before 2006.  He believes these benefits are routinely given to other similarly situated
but unidentified  employees, but he provides no proof of this.  He claims this pattern was broken only
when he was promised the General Counsel position and was allowed to work in the General
Counsel’s physical office.
Specifically, Hodge believes his professional position entitles him to have a personal
secretary, personal legal research resources, a private bathroom, the privilege of submitting his own
time and attendance sheets, a cable television, a vehicle for telecommuting, a remote control device
to open the  parking-lot gate, electronic communication devices, and salary increases beyond the
standard cost of living increases he has received annually over the years of his employment.  He
admits, however, he has access to Edotcia Thomas’s secretarial services and the Superior Court’s
law library and bathrooms, but complains he must share these services, resources, and facilities. 
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Hodge’s pleadings stated injuries cognizable under both the WPA and the Americans with
9
Disabilities Act, 42 U.S.C. 12102, 12111-12117 (ADA).  Although he did not expressly mention the
ADA, this Court previously ruled “the injuries alleged to have been inflicted by [the Superior Court]
are discrimination claims which would fall under the protection of the ADA.”  See Brotman, J., April
24, 2008 Slip Op. at 5.  
On June 26, 2007, Hodge moved to remand this action to the Superior Court of the Virgin
Islands.  By its April 24, 2008 Order, this Court denied Hodge’s motion to remand, ruling his
territorial law claims under the WPA are grounded in federal law.  This Court so ruled because he
pleaded discrimination due to his asthma disability, alleging injuries cognizable under the ADA.
After the Superior Court had filed its answer on June 6, 2007, and after this Court had denied
Hodge’s motion to remand on April 24, 2008, he moved to dismiss his ADA claims on May 8, 2008,
pursuant to Federal Rule of Civil Procedure 41(a)(2).  He asserted he never intended to file a federal
ADA claim, but merely sought to show the Superior Court’s refusal to allow him to telecommute,
as an ADA accommodation for his asthma, was an instance of retaliation prohibited under the WPA.
On June 6, 2008, before this Court ruled on Hodge’s motion to dismiss his ADA claims, the
Superior Court moved for summary judgment on Hodge’s WPA and ADA claims.  The Superior
Court argued it was entitled to judgment on his ADA claims because he failed to exhaust his
administrative remedies, and because the Superior Court, as part of the Government of the Virgin
Islands, is not subject to the requirements of the ADA.  
By its June 3, 2009 Order, this Court dismissed Hodge’s ADA claims without prejudice and
retained supplemental jurisdiction over his territorial WPA claims pursuant to 28 U.S.C. § 1367(a).
Because Hodge’s ADA claims have already been dismissed, this Court will not address the merits
of Hodge’s ADA claims in ruling on the Superior Court’s motion for summary judgment.  
9
DISCUSSION
Hodge contends his claims are properly brought under the WPA.  The record shows,
9
however, his complaints fall outside the purview of the WPA.  His non-material, often trivial,
complaints do not serve the public policy goals of the WPA to redress wrongdoing by protecting
legitimate reports by employees of “a violation or a suspected violation of a law or regulation or rule
promulgated pursuant to law of this territory or the United States.”  10 V.I.C. § 122. 
A whistleblower must show:  (1) he engaged in conduct protected under the WPA; (2) his
employer took adverse action against him; and (3) there was a causal connection between the
protected conduct and the adverse action.  Johnson v. Gov’t of the Virgin Islands, 35 V.I. 27, 31
(Terr. Ct. 1996).  Hodge has failed to present sufficient evidence to support any of the three elements
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A Virgin Islands employer is prohibited from discriminating and retaliating against employees as
10
follows: 
An employer shall not discharge, threaten, or otherwise discriminate against an
employee regarding the employee’s compensation, terms, conditions, location, or
privileges of employment because the employee, or a person acting on behalf of the
employee, reports or is about to report, verbally or in writing, a violation or a
suspected violation of a law or regulation or rule promulgated pursuant to law of this
territory or the United States to a public body unless the employee knows that the
report is false, or because an employee is requested by a public body to participate
in an investigation, hearing or inquiry held by that public body, or a court action. 
10 V.I.C. § 122.    
The WPA defines “public body” to include “the judiciary and any member or employee of the
11
judiciary.”  10 V.I.C. § 122(d)(5).  
10
of a prima facie case under the WPA, 10 V.I.C. § 122.  
10
Hodge did not engage in protected conduct.  The WPA protects an employee’s “report” to
a “public body” of a violation or a suspected violation of a law, regulation, or rule under territorial
11
or United States law.  10 V.I.C. § 122.  Even assuming his November 30, 2006 memo to Presiding
Judge Hodge is a report to a public body, he has failed to show his internal report involved conduct
protected under the WPA.  
An internal report of wrongdoing might satisfy the protected conduct requirement in some
cases, but courts have held the employee must make it clear to the employer the employee’s actions
go beyond the employee’s assigned tasks and job duties.  See Hutchins v. Wilentz, Goldman &
Spitzer, 253 F.3d 176, 193 (3d Cir. 2001) (holding a paralegal did not engage in the protected
conduct under the False Claims Act where the paralegal’s memorandum did not put his employer
on notice a False Claims Act suit was a distinct possibility); Skare v. Extendicare Health Serv., Inc.,
515 F.3d 836, 841 (8th Cir. 2008) (deciding a nurse did not become a whistleblower by merely
exercising her duties to report compliance problems at her facilities).  Hodge fails to satisfy this
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Hodge provided advice on what he perceived to be the Superior Court’s poor practices, which in
12
his view created general concerns about the Court’s liability exposure.  He did not provide a report
of wrongdoing, which he believed would lead to specific litigation by him or anyone else.  He merely
informed the Presiding Judge of a perceived problem, and sought correction through the Court’s
internal procedures.  See Pl. Br., Ex. A at 5 (“[T]he Office of the Court Administrator has failed to
abide by the opinions of this office regarding this matter, and thereby exposes the Court to
substantial and embarrassing legal action for repeated violations of due process principles.
Accordingly, . . . this office respectfully resorts to your office and authority, as Presiding Judge, to
persuade the Office of the Court Administrator to cease and desist from unlawfully and unethically
violating due process principles in the Court’s disciplinary proceedings . . . .”).      
11
heightened burden for an actionable internal report.   
Hodge’s November 30, 2006 memo was an internal complaint, prepared during the ordinary
course and scope of his duties as Assistant General Counsel.  It was exactly the type of activity he
was required to perform in fulfilling his duties as legal advisor to the Court.  He never made it clear
to the Superior Court his complaints went beyond grumbling about perceived infractions of his
authority and his opinions on proper internal procedures.  A reasonable reader of his report would
not be put on notice of potential litigation against the Superior Court by identified persons for alleged
constitutional due process violations, or his intent to investigate and pursue any such claims against
the Court. 
12
Hodge’s stated objections to the Superior Court’s internal procedures do not rise to the level
of cognizable violations of law, regulation, or rule under the law of any jurisdiction.  His broad-brush
charges of unlawful and unethical conduct in violation of another employee’s constitutional due
process right to an independent and unbiased hearing officer amount to his own personal preferences
and self-serving opinions about how internal disciplinary actions should be conducted by the
Superior Court against its employees.  The authority he relies on does not support any legal or ethical
grounds for his personal decrees.  He provides no legal basis for his perceived authority to
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12
exclusively control and enforce his proclamations of proper procedure, including his perception of
his own exclusive prosecutorial authority and discretion.  
Hodge raises only an ordinary workplace grievance, charging his colleagues usurped his own
perceived authority to exclusively prosecute internal disciplinary actions.  He ignores the Virgin
Islands Legislature’s choice to invest the Superior Court presiding judge and other personnel with
duties to supervise and enforce internal procedures.  See 4 V.I.C. § 72b(a) (“The presiding judge 
. . . shall be the administrative head of the court . . . . He shall be responsible for the observance by
the court of the rules adopted by the district court governing the practice and procedure of the
Superior Court and prescribing the duties of its judges and officers . . . . He shall supervise and direct
the officers and employees of the court in the performance of their duties.”); see also 4 V.I.C. §§ 91,
93(a), (i), and (j) (stating the Administrative Director “shall, under the supervision and direction of
the presiding judge: . . . [f]ormulate and submit to the court recommendations for the improvement
of the judicial system . . . ; [c]onsult with and assist the clerks of court, and other officers and
employees of the court and of offices related to and serving the court . . . ; and [i]nvestigate
complaints with respect to the operation of the court and make such recommendations as may be
appropriate.”); 4 V.I.C. § 94 (“All judges, clerks of the court and other officers or employees of the
court and of offices related to and serving the court shall comply with all requests made by the
Director for information . . . relative to the work of the court and of such offices . . . .”).  
Judge Donohue, Administrator Lake, and Chief Deputy Walcott exercised their statutory
duties when they met on November 17, 2006, and consulted among themselves about proceeding
with the disciplinary action against Sackey.  Moreover, there is no evidence Judge Donohue or
Administrator Lake exerted any improper pressure on Hearing Officer Davila to go forward with the
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13
disciplinary action.  Although it is clear Hodge did not get the result he wanted, this does not show
Davila’s decision was unduly influenced, biased, or otherwise improper.     
Hodge has not suffered any adverse employment action.  Although he charges various actions
were reprisals taken by Superior Court personnel for his November 30, 2006 report, none constitutes
a significant threat or denial of his compensation, terms, conditions, location, or privileges of
employment within the meaning of the WPA.  No reasonable employee would have found the
challenged actions sufficiently adverse to dissuade the employee from exercising his rights or
making a report protected under the WPA.  See Burlington N. & Santa Fe Ry. Co., 548 U.S. 53, 68
(2006) (stating in a Title VII action alleging sex discrimination and retaliation, a plaintiff must show
that a reasonable employee would have found the challenged act “materially adverse,” meaning   the
act might well have dissuaded a reasonable worker from protected conduct).   
Although Hodge complains the Superior Court did not promote him and hired General
Counsel Terry instead, the plain language of the WPA does not define an adverse employment action
to include a failure to promote.  Rather, the WPA expressly prohibits retaliatory actions “regarding
the employee’s compensation, terms, conditions, location, or privileges of employment.”  10 V.I.C.
§ 122.  The Court’s hiring of Terry did not alter Hodge’s employment as Assistant General Counsel.
His employment status remained the same, with no reduction in pay or benefits.    
The Court has established legitimate non-discriminatory and non-retaliatory reasons for its
decision to hire General Counsel Terry based on her objective, demonstrated experience and
qualifications.  Hodge provides no evidence to disbelieve the Superior Court’s articulated reasons,
or believe an invidious reason more likely than not motivated the Court’s selection of Terry.  He fails
to provide any evidence his November 30, 2006 memo was a motivating factor in the Court’s
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14
decision to hire Terry.  
Moreover, there is no proof of a causal link between Hodge’s November 30, 2006 report and
the Court’s selection of Terry on February 3, 2007.  During the three-year period prior to Hodge’s
report, when the General Counsel position remained vacant, he also was not promoted.  There is no
direct evidence Judge Donohue even saw the report prior to his decision to hire Terry, other than
Hodge’s personal conviction to the contrary.  Thus, even though Terry was hired a short period after
Hodge’s report, this does not suggest Terry was selected in retaliation against Hodge.  See Marra
v. Phila. Hous. Auth., 497 F.3d 286, 302 (3d Cir. 2007) (stating “[w]here the time between the
protected activity and adverse action is not so close as to be unusually suggestive of a causal
connection standing alone, courts may look to the intervening period for demonstrative proof . . . .”).
As the Third Circuit has emphasized, “it is causation, not temporal proximity itself, that is an
element of plaintiff’s prima facie case, and temporal proximity merely provides an evidentiary basis
from which an inference can be drawn.”  Kachmar v. SunGard Data Sys., Inc., 109 F.3d 173, 178
(3d Cir. 1997). 
Hodge’s personal conviction he was the better candidate is immaterial and irrelevant.  The
relevant question is not whether the Superior Court made an unsound business decision in selecting
Terry over Hodge.  See Fuentes v. Perski, 32 F.3d 759, 765 (3d Cir. 1994) (stating evidence showing
the employer was wrong or mistaken does not establish pretext because “the factual dispute at issue
is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd,
prudent, or competent”).  Instead, the relevant question is whether the Court selected Terry in
retaliation against Hodge.  There is no evidence to support any inference of a retaliatory motive in
the Court’s selection of Terry. 
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15
Although Hodge complains about the way in which his personal effects were removed from
the General Counsel’s office on February 5, 2007, and complains about the uncivil way in which
Judge Donohue informed him of the move, his personal feelings of humiliation do not establish a
tangible adverse employment action.  An adverse employment action must be a significant change
in employment status.  Burlington Indus. Inc. v. Ellerth, 524 U.S. 742, 761 (1998); see Flaherty v.
Gas Research Inst., 31 F.3d 451, 457 (7th Cir. 1994) (a “bruised ego” is not enough in Age
Discrimination in Employment Act context).  “[M]inor or trivial actions that merely make an
employee ‘unhappy’ are not sufficient” to establish an adverse employment action, “for otherwise
every action that an irritable, chip-on-the shoulder employee did not like would form the basis of a
discrimination suit.”  Mondzelewski v. Pathmark Stores, Inc., 162 F.3d 778, 787 (3d Cir. 1998)
(citations omitted).  The February 5, 2007 incident inflicted no direct economic harm on Hodge and
no change in his title, compensation, responsibilities, or benefits.  
An employer’s assignment of office space does not constitute a material, adverse change in
employment for purposes of either anti-discrimination laws or the WPA.  See Langley v. Merck &
Co., Inc., No. 04-3796, 2005 WL 1279108, at *2 (E.D. Pa. May 25, 2005) (holding the move of an
employee’s office was not a material, adverse change in § 1981 racial discrimination context), aff’d,
186 Fed. Appx. 258 (3d Cir. 2006); see also Shaner v. Synthes, 204 F.3d 494, 506 (3d Cir. 2000)
(holding the move of an employee’s office and uncomfortable office temperatures were not adverse
actions in the ADA discrimination and retaliation context); Hunter v. Rowan Univ., No. 04-1498,
2007 WL 1038760, at *5 (D.N.J. Mar. 30, 2007) (holding the move of employee’s office was not
an adverse action in § 1981  racial discrimination context because title and compensation remained
the same), aff’d, 299 Fed. Appx. 190 (3d Cir. 2008).     
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Hodge gripes about his various work spaces, but he does not show the Superior Court took
any adverse employment actions against him.  Although he was moved to locations he found inferior
and undesirable, there is no evidence the work sites were objectively inadequate for the performance
of his duties.  
Moreover, once Terry arrived in the General Counsel’s office, and Hodge could no longer
take advantage of the vacant office space, his dissatisfaction about working conditions was incurable.
The Superior Court took extraordinary efforts to address his seemingly interminable demands and
personal sensitivities, even though on-site professional office space was sparse.  After March 2007,
Judge Donohue allowed him to work anyplace on Superior Court premises suitable to Hodge.  From
May 5, 2008, to the present, Judge Donohue allowed Hodge to occupy an office formerly occupied
by Judge Meyers.   
None of the changes in Hodge’s working conditions can reasonably be viewed as tangible
adverse employment actions causally linked to his November 30, 2006 report.  Hodge, not the
Superior Court, was the moving force for all changes in his work spaces, except for his removal from
the vacant General Counsel’s office to make room for Terry.  The Court thereafter moved his office
only at his insistence to accommodate his personal preferences.  On the record as a whole, no
inference of retaliatory animus can be drawn from the temporal proximity of his report to any
subsequent changes in his work spaces.
Hodge remains dissatisfied because he does not have certain benefits, privileges, and perks,
and complains the Superior Court long denied him these benefits even before his purportedly
protected report was made in 2006.  The Superior Court’s refusal to meet his demands does not rise
to the level of an adverse employment action.  The professional benefits he desires do not affect or
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alter the terms and conditions of his employment, because “an adverse employment action must be
more disruptive than a mere inconvenience or an alteration of job responsibilities.”  Langley, 2005
WL 1279108, at *3.  There is no evidence the Superior Court extends these perks to other similarly
situated professionals.  Furthermore, Hodge’s longstanding complaints about his lack of perks cuts
against finding a causal connection between his report and any denial of benefits. 
The Superior Court’s refusal to allow Hodge to telecommute is not an adverse employment
action.  Telecommuting is not a benefit of employment offered by the Superior Court.  Hodge cannot
transform the Superior Court’s past tolerance of his telecommuting into a “right” and “privilege” to
telecommute in the future.  Moreover, he has not shown any causal link between the Superior
Court’s refusal of his request to telecommute and his 2006 report.  The timing of these events alone
is insufficient to infer causation.  When Judge Donohue denied his request to telecommute on March
2, 2007, the Court simply refused to continue an informal arrangement which had proved to be
unworkable.  
Hodge can show no causal link between his purportedly protected whistleblowing activity
in 2006 and any of the actions he challenges as retaliation.    
An appropriate order follows. 
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