                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                  _____________

                                  No. 98-3376MN
                                  _____________

Robert L. Hoffman,                      *
                                        *
            Appellant,                  *
                                        * On Appeal from the United
       v.                               * States District Court
                                        * for the District of
                                        * Minnesota.
Robert E. Rubin, Secretary, United      *
States Department of the Treasury,      *
                                        *
            Appellee.                   *
                                   ___________

                             Submitted: June 14, 1999
                                 Filed: October 19, 1999
                                  ___________

Before RICHARD S. ARNOLD and LOKEN, Circuit Judges, and BYRNE,1 District
      Judge.
                           ___________

RICHARD S. ARNOLD, Circuit Judge.


       Robert L. Hoffman alleges that his employer, the Department of Treasury's
Bureau of Alcohol, Tobacco, and Firearms, retaliated against him in violation of Title
VII of the Civil Rights Act of 1964, and disclosed private personnel information about


      1
       The Hon. William Matthew Byrne, Jr., United States District Judge for the
Central District of California, sitting by designation.
him in violation of the Privacy Act, after he supported publicly a colleague who had
alleged that she was sexually harassed and discriminated against by other ATF agents.
The District Court,2 holding that Mr. Hoffman could not establish a prima facie case
of retaliation, or demonstrate that the disclosures of personnel information violated the
Privacy Act, granted the ATF's motion for summary judgment. We affirm.

                                           I.

      The facts of this case are extensive. Mr. Hoffman became an ATF agent in
1989, and was stationed in St. Paul. In early 1992, Mr. Hoffman's supervisor, Michele
Roberts, was accused by Patrick Hourihan, whom Ms. Roberts also supervised, of
sexual harassment. Mr. Hourihan had been suspended by Ms. Roberts for
insubordination, and Mr. Hourihan alleged that he was suspended because he had
ended a personal relationship with Ms. Roberts. According to Ms. Roberts, Mr.
Hourihan, when informed of his suspension, threatened her, and, fearful that he might
harm her physically, she contacted the ATF's Office of Internal Affairs.

       Because Mr. Hoffman worked with both Ms. Roberts and Mr. Hourihan,
internal-affairs investigators interviewed him several times in 1992. He reported a
variety of misconduct by Mr. Hourihan, including allegations that Mr. Hourihan had
discharged a firearm improperly while intoxicated, harassed a neighbor for complaining
about his dog, and stolen explosives from the ATF. Mr. Hoffman was interviewed
about allegations Mr. Hourihan had made against him, including an allegation that Mr.
Hoffman and Ms. Roberts had been involved romantically, which Mr. Hoffman denied.
In July, Ms. Roberts filed a formal complaint alleging that she had been subjected to
sexual harassment and discrimination within the ATF.



      2
      The Hon. David S. Doty, United States District Judge for the District of
Minnesota.

                                          -2-
      In September of 1992, Mr. Hourihan resigned from the ATF, and Mr. Hoffman
was suspended for ten days for failing to make a timely report of the incident during
which Mr. Hourihan improperly discharged a firearm. Mr. Hoffman alleges that the
suspension was in retaliation for his having supported Ms. Roberts's story. In addition,
Mr. Hoffman was told during this time that he was going to be transferred to Houston,
despite his on-going effort to be transferred to Milwaukee, nearer his son. (The transfer
to Houston never took place.) Mr. Hoffman also alleges that he was told that no agents
were available to assist him in his investigations, and that he was required to call in
from the field and submit daily itineraries, although this was not required of other
agents.

       Mr. Hoffman was interviewed in October of 1992 for a "60 Minutes" program
about the sexual harassment of Ms. Roberts and other female agents in the ATF. The
director of the ATF, Stephen Higgins, was also interviewed, and he later wrote a letter
to "60 Minutes" suggesting that "you ought to secure a waiver and get some insight into
the reason Mr. Hoffman is being suspended and reassigned." Also, in order to respond
to press inquiries about the "60 Minutes" segment, which was broadcast in January of
1993, ATF officials prepared a briefing document that referred to Mr. Hoffman by
name and disclosed the reason for his suspension.

       In March of 1993 the ATF granted Mr. Hoffman's request that he be placed on
medical leave on account of stress. (At the time of oral argument, Mr. Hoffman
remained on medical leave.) On June 30, 1993, Mr. Hoffman consulted an Equal
Employment Opportunity counselor at the ATF. Several months later, in September,
Mr. Hoffman filed his first formal EEO complaint, alleging that the ATF had retaliated
against him for supporting Ms. Roberts. The retaliation he cited included the proposed
transfer, his ten-day suspension, a performance evaluation that lowered his job rating
by two levels, a change in his duties, and an attempt by ATF agents to have him
prosecuted for recording an interview with internal-affairs investigators. He also


                                          -3-
alleged that the ATF failed to take action against Mr. Hourihan after Mr. Hoffman
reported that Mr. Hourihan was conducting surveillance on his residence.

       The EEO office of ATF, after conducting an investigation, dismissed Mr.
Hoffman's complaint in December of 1993, finding that all of his claims except one
were time-barred because he had not contacted an EEO counselor within 45 days of the
alleged retaliatory acts. The most recent complaint (and the only one within the
limitations period) concerned the attempted prosecution. The EEO office determined
that the attempted prosecution was not an "adverse action" as defined in Title VII. Mr.
Hoffman appealed, and the agency's dismissal of the complaint was upheld by the
Equal Employment Opportunity Commission.

       In the spring of 1994, an ATF agent told a law-enforcement officer in Minnesota
that Mr. Hoffman was involved with a motorcycle gang whose members had often been
investigated by the ATF and other law-enforcement agencies. The ATF agent had
heard from Milwaukee police officers that Mr. Hoffman was seen at a meeting of the
Outlaws Motorcycle Club, and, from a confidential informant, that Mr. Hoffman had
attended an Outlaws Christmas party. The agent, Ron Holmes, gave the information
to Ron Liebenstein, an investigator with the Rice County, Minnesota, Sheriff's
Department.

       Around the same time, Mr. Holmes distributed a memorandum to ATF agents
in the Chicago region that referred to Mr. Hoffman's involvement with the Outlaws,
although it did not identify Mr. Hoffman by name. The memorandum said that "an ATF
agent, who is not on active duty, had been observed inside the Outlaws/Milwaukee
Clubhouse for a Christmas Eve (1993) party, according to Milwaukee law enforcement
officers, and was photographed by law enforcement officers in Wisconsin while talking
with Outlaws at a February 1994 swap meet."




                                          -4-
      In the summer of 1994 Mr. Hoffman filed a second EEO complaint, alleging that
the ATF was retaliating against him by spreading false allegations about him. Although
he admits having attended the swap meeting, he denies attending the Christmas party
or engaging in any improper conduct with the Outlaws. In October the EEO office
dismissed the second complaint, finding that Mr. Hoffman had failed to show that the
statements in Mr. Holmes's memorandum affected a term, condition, or privilege of his
employment. Mr. Hoffman did not appeal this decision to the EEOC.

       Also in the summer of 1994, the ATF notified Mr. Hoffman that, upon returning
to active duty, he would be assigned to the Chicago office. Mr. Hoffman filed a third
complaint, alleging that the transfer was yet another act of retaliation. Mr. Hoffman
then filed this lawsuit, in November of 1994, and discovery began. The third
administrative complaint was dismissed as duplicative because it concerned the same
allegation as the lawsuit.

       In January of 1996, Mr. Hoffman learned that he was being investigated on
suspicion of leaking information to the Outlaws. During the course of another criminal
investigation, the ATF began to suspect that information about the investigation was
being leaked to the Outlaws by Mr. Hoffman. Mr. Hoffman alleged, in a fourth EEO
complaint, that this was another act of retaliation by the ATF. Because the
investigation was on-going, the agency dismissed the complaint.

                                          II.

      Mr. Hoffman alleges that the ATF retaliated against him for engaging in
protected activity in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§§ 2000e et seq. (1994). In order to establish a prima facie case of retaliation, Mr.
Hoffman must be able to show that he engaged in protected activity, that an adverse
employment action occurred, and that there was a causal connection between the two.
For purposes of Title VII, an employer may not discriminate against an employee who

                                          -5-
has "opposed any practice made an unlawful employment practice by this subchapter,
or . . . testified, assisted, or participated in any manner in an investigation, proceeding,
or hearing under this subchapter." 42 U.S.C. § 2000e-3(a). With respect to each claim
of retaliation, the District Court held either that Mr. Hoffman failed to show that he
engaged in protected activity, that the claims were barred because he failed to exhaust
his administrative remedies, that he failed to present evidence of adverse employment
action, or that he failed to present evidence showing that the ATF's reasons for the
action were pretextual. Having reviewed the evidence presented to the District Court,
and having drawn all inferences in favor of Mr. Hoffman, as we are required to do, we
reach the same conclusion as the District Court, that the ATF was entitled to summary
judgment.

                                            A.

        Mr. Hoffman alleges that he engaged in protected activity by providing evidence
in the two internal-affairs investigations. We agree with the District Court, for the most
part, that Mr. Hoffman's involvement in these investigations was limited to accusations
about Mr. Hourihan's alleged misconduct, not allegations concerning any conduct that
is unlawful under Title VII. When Mr. Hoffman was first interviewed by internal-
affairs investigators, no complaint had been filed by Ms. Roberts, nor had she
contacted an EEO counselor. Mr. Hoffman did not allege that he was aware that Ms.
Roberts was preparing to file a complaint of discrimination, that he assisted her in
preparing or filing the charge, or that he assisted her in any way in prosecuting the
claim.

       Mr. Hoffman did, however, tell investigators in the spring of 1992 that Mr.
Hourihan had said that he "would love to get down [Ms.] Roberts's pants," and that he
was troubled because she was not interested in him. Mr. Hoffman also told
investigators that Mr. Hourihan had spread rumors that Mr. Hoffman and Ms. Roberts
had been involved romantically, and that he did not believe Mr. Hourihan's allegation

                                            -6-
that he had had an affair with Ms. Roberts, because Mr. Hourihan had not bragged
about it previously, as he had done about other relationships. Mr. Hoffman was
interviewed again, in May of 1992, and he provided an affidavit denying Mr.
Hourihan's charges. In May of 1993, according to Mr. Hoffman, he provided another
affidavit, this time corroborating some of Ms. Roberts's allegations of harassment,
including his belief that Mr. Hourihan "became obsessed with Michele Roberts and felt
rejected when she did not respond to his advances, and that he then created a story
which slandered Michele as revenge for personnel actions she took against him." App.
at 1367.

       Mr. Hoffman's appearance on "60 Minutes" was the only other arguably
protected activity in which he engaged. There is no dispute that the program concerned
allegations of sexual harassment and discrimination within the ATF. Although Mr.
Hoffman's role was limited, we assume, as the District Court did, that his appearance
on the show could be construed as opposing a practice made unlawful by Title VII.

                                          B.

       As we have said, Mr. Hoffman first consulted an EEO counselor on June 30,
1993. An employee alleging discrimination must pursue an administrative remedy by
consulting with his agency's EEO counselor within 45 days of the alleged
discriminatory acts. Otherwise, the alleged act is considered outside the limitations
period. In this case, the District Court held that any specific act of retaliation that
occurred before May 16, 1993, is time-barred. According to Mr. Hoffman, the last
retaliatory event that occurred within the limitations period was on May 19, 1993, when
he learned that the ATF had contacted the Ramsey County Attorney's Office, in the fall
of 1992, about prosecuting him for tape recording an interview with internal-affairs
investigators. Because that event was within the applicable time period, the previous
acts of retaliation, in Mr. Hoffman's view, should be considered under the continuing-
violations doctrine.

                                          -7-
       We disagree for two reasons. First, Mr. Hoffman admitted, in response to
interrogatories, that he learned of the ATF's efforts to have him prosecuted as early as
the fall of 1992. Because he waited until June 30, 1993, to consult with an EEO
counselor, this alleged retaliatory act is not within the limitations period. Although Mr.
Hoffman asserts that the District Court misread his response to the interrogatories, he
directs us to nothing in the record to support this claim. Second, even if this event were
not outside the limitations period, it was not an adverse employment action. Any
decision to prosecute Mr. Hoffman for violating Minnesota state law rested with the
local prosecutor, and, in fact, no charges were ever brought against him. This incident
cannot serve as the basis for applying the continuing-violations doctrine.3 Accordingly,
we hold that the retaliatory acts alleged to have been committed before May 16, 1993,
are outside the limitations period.

                                            C.

      We turn now to three alleged acts of retaliation that are not time-barred: the
proposed transfer to Chicago, the publication of Ron Holmes's memorandum and
statements he made to Ron Liebenstein, and the criminal investigation of Mr. Hoffman.

       With respect to the proposed transfer to Chicago, to take place if plaintiff returns
to active duty, we agree with the District Court that it would not be considered an
adverse employment action within the meaning of Title VII. An adverse action occurs
when an employee suffers some personal loss or harm with respect to a term, condition,
or privilege of employment. Mr. Hoffman's proposed transfer cannot be said to have

      3
         Mr. Hoffman also argues that his failure to contact an EEO counselor should be
excused under equitable tolling principles. This argument is unavailing. Equitable
tolling is precluded where the employee was aware of his rights and where there is no
evidence that the agency prevented the employee from filing a claim. Mr. Hoffman
does not contend that he was unaware of his rights, or that the ATF prevented him from
filing a claim.

                                           -8-
caused him personal loss or harm, or disadvantage him in any way cognizable under
Title VII. His rank, pay, and other benefits would not be changed. We acknowledge
plaintiff's contention that personnel and conditions in the Chicago office would be
hostile to him. Such considerations, while hardly negligible on a personal level, are not
concrete enough to trigger a Title VII claim. See e.g., Harlston v. McDonnell Douglas
Corp., 37 F.3d 379 (8th Cir. 1994). Montandon v. Farmland Industries, Inc., 116 F.3d
355 (8th Cir. 1997).

       Regarding the disclosures by Ron Holmes, the District Court held that the ATF
had provided legitimate, non-retaliatory reasons for the disclosures, and that Mr.
Hoffman had offered no substantial evidence to rebut as pretextual those reasons. We
agree.

       The purpose of both the memorandum and the statements made to Mr.
Liebenstein, according to the ATF, was to keep other law-enforcement personnel
informed of security risks in dealing with motorcycle gangs. The memorandum was
designed to provide information to agents in the field about the increased criminal
activity of motorcycle organizations and, in particular, efforts by motorcycle gangs to
derive information about law-enforcement activities by associating with current or
former law-enforcement officers. The memorandum contained nine examples of
federal, state, and local law-enforcement officers who were suspected to have
associated with motorcycle gangs, although none of the individuals was mentioned by
name. One of the individuals was Mr. Hoffman, and we accept his claim that those
who read the memorandum would recognize that he was the person referred to.

      The disclosures made to Mr. Liebenstein were made for substantially the same
reasons. Mr. Liebenstein testified that he called Mr. Holmes, a specialist in motorcycle
gangs, specifically to ask about recent motorcycle gang activity. In the course of the
conversation, Mr. Liebenstein asked Mr. Holmes whether he had heard anything about
Mr. Hoffman. Mr. Holmes said that Milwaukee police officers had observed Mr.

                                          -9-
Hoffman associating with members of the Outlaw Motorcycle Club. The information
was provided to a fellow law enforcement officer in an effort to be cooperative, and,
when used for official purposes, we see nothing inappropriate or improper about an
exchange of information of this sort. Indeed, this is precisely the sort of information
law-enforcement officers must share in order to protect the integrity of criminal
investigations, as well as to ensure their own personal safety.

        Mr. Hoffman argues that he presented evidence showing that the reasons offered
by the ATF for the disclosures were a pretext for the agency's retaliation against him,
and that the District Court improperly weighed the evidence. He alleges that the
information given to Mr. Holmes by the Milwaukee police was similar to information
given previously by the same officers, later proved to be false, that Mr. Holmes knew
that, and that he made no effort to verify the more recent information. Mr. Hoffman
also alleges that pretext may be inferred from the high level of animosity exhibited by
Mr. Holmes during the conversation. A reasonable inference, in Mr. Hoffman's view,
is that Mr. Holmes was so frustrated at him for supporting Ms. Roberts that he targeted
Mr. Hoffman for retaliation. In our opinion, these suggested inferences are, on the
present record, too tenuous to bear the weight the plaintiff would place upon them. Mr.
Holmes's animosity is easily explained by his anger at what he believed to be plaintiff's
questionable associations, and perhaps at the plaintiff's previous accusations (unrelated
to Title VII) against Mr. Hourihan. The plaintiff was plainly in bad graces at ATF, but
we do not think the trier of fact could reasonably find that this situation stemmed in any
substantial degree from protected activity.

       Finally, with respect to the criminal investigation of Mr. Hoffman by the United
States Attorney for the Eastern District of Wisconsin, we agree with the District Court
that the investigation was not an adverse employment action. First, as the ATF argues,
the investigation is a preliminary, and not final, decision. Second, Mr. Hoffman was
not even aware of the investigation until he was told about it by the government during
discovery in this lawsuit. And, third, despite Mr. Hoffman's argument that the

                                          -10-
investigation has prevented him from returning to work as an ATF agent, he has
presented no evidence, other than mere assertions, to suggest that the investigation is
responsible for any change in the terms or conditions of his employment. We hesitate
to approve a rule of law that would make wrongful a criminal investigation not
conducted by the employer and supported by at least some evidence of inappropriate
association between a law-enforcement officer and a criminal gang.

        In addition, Mr. Hoffman has offered no evidence that the ATF's explanation for
the investigation is pretextual. The ATF began the investigation, which did not focus
initially on Mr. Hoffman, to find the source of information it believed was being leaked
to the Outlaws. Locating a person who is leaking sensitive investigative information
which may threaten the safety of police officers and others is a legitimate law-
enforcement need, and Mr. Hoffman has produced nothing substantial to suggest that
the investigation of him was inappropriate under the circumstances.

                                          III.

       Mr. Hoffman alleges that the ATF disclosed information from his personal and
EEO files in violation of the Privacy Act, 5 U.S.C. § 552a (1994). There is no merit
in this argument, and the claim must fail for several reasons. The District Court's
discussion of this issue was extensive, and we have nothing significant to add. Mr.
Hoffman has not shown that the briefing document the ATF prepared to defend itself
against the allegations contained in the "60 Minutes" program was given to anyone
outside the agency, nor to anyone in the agency who did not have a need to know the
information. As to Mr. Higgins's letter to the "60 Minutes" journalist, Mr. Hoffman
himself had previously provided the same information to the journalist, waiving, in
effect, his protection under the Privacy Act. With respect to the disclosures made by
Mr. Holmes, it is undisputed that the source of the information was outside the ATF.
In order to prevail under the Privacy Act, the information must have been contained in
a system of records maintained by the ATF, and there is no evidence that Mr. Holmes

                                         -11-
obtained the information he disclosed from any ATF record. Olberding v. United
States Department of Defense, 709 F.2d 621 (8th Cir. 1983), is in point. Plaintiff
argues the case is wrong, but it is binding on this panel.

                                       IV.

      For the reasons we have given, the judgment is affirmed.

      A true copy.

            Attest:

               CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                       -12-
