Allen Thompson v. City of Waco, Texas

Case: 13-50718 Document: 00512755807 Page: 1 Date Filed: 09/03/2014

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-50718 United States Court of Appeals

Fifth Circuit

FILED

ALLEN THOMPSON, September 3, 2014

Lyle W. Cayce

Plaintiff – Appellant, Clerk

v.

CITY OF WACO, TEXAS,

Defendant – Appellee.

Appeal from the United States District Court

for the Western District of Texas

Before SMITH, CLEMENT, and HIGGINSON, Circuit Judges.

HIGGINSON, Circuit Judge:

Allen Thompson sued the City of Waco for racial discrimination under

42 U.S.C. § 1981 and Title VII. The district court dismissed Thompson’s claims

pursuant to Rule 12(b)(6), holding that Thompson failed to allege an adverse

employment action. Because Thompson plausibly alleges that he was subject

to the equivalent of a demotion, we reverse the district court’s judgment.

I.

Thompson is an African American detective in the Waco Police

Department. The Department suspended Thompson and two white detectives

based on allegations that they had falsified time sheets. After reinstating the

three detectives, the Department imposed written restrictions on Thompson

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that it did not impose on the two white detectives. The restrictions state that

Thompson cannot (1) search for evidence without supervision; (2) log evidence;

(3) work in an undercover capacity; (4) be an affiant in a criminal case; (5) be

the evidence officer at a crime scene; and (6) be a lead investigator on an

investigation. According to Thompson, these restrictions have stripped him of

the “integral and material responsibilities of a detective,” and constitute a

demotion. Thompson alleges that he “no longer functions as a full-fledged

detective; he is, effectively, an assistant to other detectives.” He further alleges

that his new position has “significantly different and diminished material

responsibilities,” is less prestigious, will hinder his opportunities for

advancement, and is less interesting. He no longer uses the skills, education,

and experience that he had acquired and regularly used as a detective.

II.

We review a district court’s dismissal under Federal Rule of Civil

Procedure 12(b)(6) de novo. Doe ex rel. Magee v. Covington Cnty. Sch. Dist. ex

rel. Keys, 675 F.3d 849, 854 (5th Cir. 2012) (en banc). We accept all well-

pleaded facts as true and view all facts in the light most favorable to the

plaintiff. Id. We need not, however, accept the plaintiff’s legal conclusions as

true. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). To survive dismissal, a

plaintiff must plead “enough facts to state a claim to relief that is plausible on

its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has

facial plausibility when the plaintiff pleads factual content that allows the

court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Iqbal, 556 U.S. at 678. “Our task, then, is to determine

whether the plaintiff stated a legally cognizable claim that is plausible, not to

evaluate the plaintiff’s likelihood of success.” Covington, 675 F.3d at 854

(internal quotation marks and citation omitted).

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III.

Title VII makes it unlawful for an employer “to fail or refuse to hire or to

discharge any individual or otherwise to discriminate against any individual

with respect to his compensation, terms, conditions, or privileges of

employment, because of such individual’s race . . . .” 42 U.S.C. § 2000e-2(a)(1)

(emphasis added). To establish a discrimination claim under Title VII or

§ 1981, a plaintiff must prove that he or she was subject to an “adverse

employment action”—a judicially-coined term referring to an employment

decision that affects the terms and conditions of employment. See, e.g., Pegram

v. Honeywell, Inc., 361 F.3d 272, 281-82 (5th Cir. 2004); see also Burlington N.

& Santa Fe Ry. Co. v. White, 548 U.S. 53, 62 (2006) (explaining that the

language of Title VII’s antidiscrimination provision “explicitly limit[s] the

scope of that provision to actions that affect employment or alter the conditions

of the workplace”).

For Title VII and § 1981 discrimination claims, we have held that

adverse employment actions consist of “ultimate employment decisions” such

as hiring, firing, demoting, promoting, granting leave, and compensating. See

McCoy v. City of Shreveport, 492 F.3d 551, 560 (5th Cir. 2007); Alvarado v. Tex.

Rangers, 492 F.3d 605, 612 (5th Cir. 2007); Pegram, 361 F.3d at 282. “[A]n

employment action that ‘does not affect job duties, compensation, or benefits’

is not an adverse employment action.” Pegram, 361 F.3d at 282 (quoting Banks

v. E. Baton Rouge Parish Sch. Bd., 320 F.3d 570, 575 (5th Cir. 2003)).

Additionally, our court has held that a transfer or reassignment can be

the equivalent of a demotion, and thus constitute an adverse employment

action. See Alvarado, 492 F.3d at 612-15. “[T]o be the equivalent to a

demotion, a transfer need not result in a decrease in pay, title, or grade; it can

be a demotion if the new position proves objectively worse—such as being less

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prestigious or less interesting or providing less room for advancement.” Id. at

613 (quoting Sharp v. City of Hous., 164 F.3d 923, 933 (5th Cir. 1999)); Pegram,

361 F.3d at 283 (“[A]n employment transfer may qualify as an adverse

employment action if the change makes the job objectively worse.” (internal

quotation marks omitted)); Hunt v. Rapides Healthcare Sys., LLC, 277 F.3d

757, 770 (5th Cir. 2001) (“A job transfer that includes a shift change that

involves changes in duties or compensation or can be objectively characterized

as a demotion may be an ‘adverse employment action’ . . . .”); see, e.g., Sharp,

164 F.3d 933 (“The jury could have viewed transferring from the elite Mounted

Patrol to a teaching post at the Police Academy to be, objectively, a demotion.”);

Forsyth v. City of Dall., 91 F.3d 769, 774 (5th Cir. 1996) (recognizing as

demotions the reassignment of two police officers from the Intelligence Unit to

night patrol because the Intelligence Unit positions “were more prestigious,

had better working hours, and were more interesting than night patrol” and

“few officers voluntarily transferred from the Intelligence Unit to night patrol

and other officers had been so transferred as punishment”); Click v. Copeland,

970 F.2d 106, 110 (5th Cir. 1992). 1

In this case, the district court held that Thompson failed to allege an

adverse employment action because he pleaded only “the loss of some job

responsibilities,” without any change in “title, pay, and benefits.” On appeal,

Thompson contends that he alleged more than the mere loss of some job

responsibilities; he contends that he alleged that the Department stripped him

of the “integral and material responsibilities of a detective.” According to

1 As our court clarified in Alvarado, “[a]lthough Click, Forsyth, [and] Sharp . . . all

involved claims of First Amendment retaliation under 42 U.S.C. § 1983, rather than claims

of discrimination under Title VII, they are nevertheless relevant because the definition of

‘adverse employment action’ under § 1983, like Title VII’s definition of ‘adverse employment

action,’ includes demotions.” Alvarado, 492 F.3d at 613 n.6.

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Thompson, he no longer functions as a detective; he has been effectively

demoted to the position of an assistant detective.

This court has recognized that the mere “loss of some job responsibilities”

does not constitute an adverse employment action. See Williams v. U.S. Dept.

of Navy, 149 F. App’x 264, 269-70 (5th Cir. 2005); Hernandez v. Crawford Bldg.

Material Co., 321 F.3d 528, 532 n.2 (5th Cir. 2003) (citing Mota v. Univ. of Tex.

Hous. Health Sci. Ctr., 261 F.3d 512, 521 (5th Cir. 2001) for the proposition

that the “loss of some job duties” is not an ultimate employment decision);

Watts v. Kroger Co., 170 F.3d 505, 511-12 (5th Cir. 1999) (holding that a change

in work schedule and request that an employee perform two additional tasks

did not rise to the level of an adverse employment action). Other circuits

similarly agree that “a mere inconvenience or an alteration of job

responsibilities” will not suffice. See Crady v. Liberty Nat’l Bank & Trust Co.,

993 F.2d 132, 136 (7th Cir. 1993); see also Kidd v. Mando Am. Corp., 731 F.3d

1196, 1204 n.11 (11th Cir. 2013) (noting that “it’s a rare case where a change

in employment responsibilities qualifies as an adverse employment action”);

Mungin v. Katten Muchin & Zavis, 116 F.3d 1549, 1557 (D.C. Cir. 1997)

(agreeing with “other circuits [which] have held that changes in assignments

or work-related duties do not ordinarily constitute adverse employment

decisions if unaccompanied by a decrease in salary or work hour changes”).

This does not mean that a change in or loss of job responsibilities can

never form the basis of an actionable discrimination claim, however. In certain

instances, a change in or loss of job responsibilities—similar to the transfer

and reassignment contexts—may be so significant and material that it rises to

the level of an adverse employment action. See Schirle v. Sokudo USA, LLC,

484 F. App’x 893, 898 (5th Cir. 2012) (“Still, it is recognized that a significant

diminishment of ‘material responsibilities,’ or a demotion, also constitutes an

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adverse employment action under Title VII.” (internal citations omitted));

Davis v. Town of Lake Park, 245 F.3d 1232, 1245 (11th Cir. 2001) (“We do not

suggest that a change in work assignments can never by itself give rise to a

Title VII claim; in unusual instances the change may be so substantial and

material that it does indeed alter the ‘terms, conditions, or privileges’ of

employment.”); Michael v. Caterpillar Fin. Servs. Corp., 496 F.3d 584, 594 (6th

Cir. 2007) (explaining that a “materially adverse change might be indicated by

. . . a demotion evidenced by . . . significantly diminished material

responsibilities”); Czekalski v. Peters, 475 F.3d 360, 364 (D.C. Cir. 2007)

(“‘[W]ithdrawing an employee’s supervisory duties,’ for example, ‘constitutes

an adverse employment action.’”); Dahm v. Flynn, 60 F.3d 253, 257 n.2 (7th

Cir. 1994) (“[I]f the duties of an assistant prosecutor were changed from trying

cases to sharpening pencils, that change would be materially adverse . . . .”). 2

In this case, Thompson alleges more than a mere loss of some job

responsibilities. He alleges facts that, taken as true, plausibly suggest that,

following his reinstatement, the Department rewrote and restricted his job

description to such an extent that he no longer occupies the position of a

detective; he now functions as an assistant to other detectives. Although a

2 Compare Baloch v. Kempthorne, 550 F.3d 1191, 1197 (D.C. Cir. 2008) (holding that

a change in job duties was not an adverse employment action where the new job duties “did

not constitute qualitatively inferior work requiring any less skill or knowledge”), and

Morales-Vallellanes v. Potter, 605 F.3d 27, 38 n.15 (1st Cir. 2010) (“We emphasize that there

was no evidence presented at trial that the rotation was permanent, or that he was divested

of meaningful job responsibilities as a consequence.” (emphasis added)), and Hunt, 277 F.3d

at 771 (hold that a shift change was not an adverse employment action where it was

“undisputed that the night shift would have offered Hunt the same benefits, responsibilities,

and compensation” and there was no evidence that the night shift “could be characterized,

objectively, as a demotion”), with Lavalais v. Vill. of Melrose Park, 734 F.3d 629, 633 (7th Cir.

2013) (holding that plaintiff successfully pleaded an adverse employment action based on his

assignment to the night shift where plaintiff alleged facts indicating that his duties were so

restricted that “it is as if he is not a sergeant”).

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detective in name, Thompson alleges that he can no longer “detect”—that is,

search for evidence—without supervision. Nor can he log evidence, be the

affiant in a criminal case, work undercover, be the evidence officer at a crime

scene, or be the lead investigator on an investigation. Thompson therefore

alleges that he lost the essential job functions of a detective, he no longer uses

his education and skills that he had acquired and regularly used as a detective,

and his new position is less interesting, provides fewer opportunities for

advancement, is less prestigious, and involves significantly diminished

responsibilities. We previously have held that an employment decision “need

not result in a decrease in pay, title, or grade” to constitute a demotion; “it can

be a demotion if the new position proves objectively worse—such as being less

prestigious or less interesting or providing less room for advancement.”

Alvarado, 492 F.3d at 613 (quoting Sharp, 164 F.3d at 933). Viewing the

factual allegations in the light most favorable to Thompson, we conclude that

Thompson plausibly alleges that he was subject to the equivalent of a

demotion.

The City distinguishes the Alvarado line of cases on the ground that

those cases involve transfers or reassignments of employees to different units

or positions. Under the City’s reasoning, an employer’s decision formally to

transfer an employee to a new position or division could be actionable; whereas

an employer’s decision to rewrite an employee’s job description or strip the

employee of his or her material job functions could not. The City’s proposed

distinction is not supported by the statute’s terms, which reach discrimination

in the “terms, conditions, or privileges” of employment. See 42 U.S.C. § 2000e-

2(a)(1). Moreover, the City’s proposed distinction is formalistic, easily

manipulated, and has not been adopted by courts. In both scenarios, the

employee may effectively occupy a new and objectively worse position, with

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significantly diminished material responsibilities. See, e.g., Schirle, 484 F.

App’x at 898; Lavalais, 734 F.3d at 633.

The cases cited by the district court and the City involving the mere loss

of some job responsibilities are distinguishable from the present case. For

instance, in Williams, 149 F. App’x at 269-70, this court held at the summary-

judgment stage that a nurse employed at a naval clinic was not subject to an

adverse employment action when the clinic removed Williams’s duties as a

diabetic educator, which had comprised approximately 20% of her overall job

duties. In that case, however, there was no indication that being a diabetic

educator was an integral and material part of Williams’s job as a nurse or that

Williams’s overall level of responsibility was significantly diminished. See id.

Here, in contrast, Thompson plausibly alleges that working undercover,

searching for and logging evidence, serving as an evidence officer, acting as an

affiant, and being a lead investigator “are all integral and material

responsibilities of a detective,” and that his job responsibilities have been

significantly diminished.

The district court also cites Roberts v. Unitrin Specialty Lines Ins. Co.,

405 F. App’x 874, 879 (5th Cir. 2010). In Roberts, we held that an employer’s

transfer of some of Roberts’s job duties to another employee did not constitute

an adverse employment action for the purposes of a retaliation claim “in light

of the fact that Roberts acknowledge[d] that she was overworked prior to the

transfer.” Id. Thus, an employer’s decision to relieve an employee from a

burdensome workload was not materially adverse in Roberts. There is no

similar allegation in this case that Thompson was overworked or that his job

duties were otherwise burdensome.

Mota, 261 F.3d at 521, is similarly distinguishable. In Mota, the plaintiff

presented evidence that, during his employment as a visiting professor, the

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university “stripped [him] of his duties as principal investigator on certain

projects.” Significantly, the university limited Mota’s ability to serve as

principal investigator only “on certain projects,” and there was no indication

that being a principal investigator on those projects was a significant part of

his job as a visiting professor. Id. In contrast, Thompson alleges that he lost

his ability to perform his essential job functions in all investigations, not just

on certain projects. Compare id., with Schirle, 484 F. App’x at 898, and

Lavalais, 734 F.3d at 633 (holding that the plaintiff successfully pleaded an

adverse employment action where the plaintiff alleged facts indicating that his

duties were so restricted on the midnight shift that “it is as if he is not a

sergeant”).

For the above reasons, Thompson states a plausible claim that he was

subject to the equivalent of a demotion. We of course express no view on

Thompson’s likelihood of success, noting only that further assessment of his

demotion claim is fact-intensive and better suited for the summary-judgment

or trial stage. See, e.g., Alvarado, 492 F.3d at 613; Williams, 149 F. App’x at

269-70.

IV.

Because Thompson plausibly alleges an adverse employment action, we

REVERSE the district court’s judgment and REMAND for further proceedings.

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JERRY E. SMITH, Circuit Judge, dissenting:

Plaintiff Allen Thompson failed to plead facts sufficient to meet our cir-

cuit’s requirement of an “ultimate” employment action. I therefore respectfully

dissent.

I.

Under 42 U.S.C. § 2000e-2(a)(1), it is unlawful for an employer “to fail or

refuse to hire or to discharge any individual, or otherwise to discriminate

against any individual with respect to his compensation, terms, conditions, or

privileges of employment, because of such individual’s race . . . .” If there is no

direct evidence of discriminatory intent, a plaintiff may establish his disparate-

treatment claim indirectly. 1 That is done through the McDonnell Douglas

burden-shifting framework under which a prima facie case of discrimination is

established by showing that the plaintiff (i) belongs to a protected class; (ii) is

qualified for the position at issue; (iii) was subject to an adverse employment

action; and (iv) was treated less favorably than other similarly situated

employees outside of his class. 2 Because the McDonnell Douglas framework is

merely an evidentiary standard, however, courts may require neither that the

McDonnell Douglas prima facie case be adequately pleaded 3 nor that jury

1 See Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121 (1985); McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 802–06 (1973); see also Daigle v. Liberty Life Ins. Co.,

70 F.3d 394, 396 (5th Cir. 1995); Davis v. Chevron U.S.A., Inc., 14 F.3d 1082, 1085 (5th Cir.

1994).

2 See McDonnell Douglas, 411 U.S. at 802; Haire v. Board of Sup’rs of La. State Univ.

Agric. & Mech. Coll., 719 F.3d 356, 363 (5th Cir. 2013).

3 Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511 (2002) (“[I]t is not appropriate to

require a plaintiff to plead facts establishing a prima facie case because the McDonnell Doug-

las framework does not apply in every employment discrimination case. For instance, if a

plaintiff is able to produce direct evidence of discrimination, he may prevail without proving

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instructions be framed in their terms. 4

Thompson posits that the district court erred in dismissing his claim for

failure to plead an adverse employment action, reasoning that it is an element

of the McDonnell Douglas prima facie case and therefore need not be pleaded.

That theory, however, is based on a misunderstanding of the role of adverse

employment actions in disparate-impact claims. The district court did not err

in considering whether an adverse employment action was properly pleaded,

because it is not merely an element of a prima facie case using the indirect

method of McDonnell Douglas burden-shifting; to the contrary, it is an essen-

tial element of the underlying claim of disparate treatment under Title VII.

Although the Supreme Court in Swierkiewicz held that a plaintiff need

not plead the prima facie elements of the McDonnell Douglas framework in

order to withstand a Rule 12(b)(6) motion to dismiss, it did so “on the ground

that the Court of Appeals had impermissibly applied what amounted to a

heightened pleading requirement by insisting that Swierkiewicz allege ‘spe-

cific facts’ beyond those necessary to state his claim and the grounds showing

entitlement to relief.” 5 In other words, given that the plaintiff could prove dis-

criminatory intent using direct evidence, requiring him to plead facts sufficient

to show all elements of a prima facie case under the indirect method would

all the elements of a prima facie case.”); see also Raj v. La. State Univ., 714 F.3d 322, 331 (5th

Cir. 2013) (“Although Raj does not challenge the district court’s interpretation of his pleading

burden, we nonetheless note that a plaintiff need not make out a prima facie case of discrim-

ination in order to survive a Rule 12(b)(6)motion to dismiss for failure to state a claim. Inas-

much as the district court required Raj to make a showing of each prong of the prima facie

test for disparate treatment at the pleading stage, the district court erred by improperly sub-

stituting an “evidentiary standard for a pleading requirement.” (citations omitted)).

4 See Kanida v. Gulf Coast Med. Personnel LP, 363 F.3d 568, 576 (5th Cir. 2004) (“This

Court has consistently held that district courts should not frame jury instructions based upon

the intricacies of McDonnell Douglas burden shifting analysis.”).

5 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007) (quoting Swierkiewicz, 534 U.S.

at 508).

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require him “to plead more facts than he may ultimately need to prove to suc-

ceed on the merits.” Swierkiewicz, 534 U.S. at 511−12. Although that height-

ened standard was erroneous, the plaintiff was still required to meet the gen-

eral standard: to plead “enough facts to state a claim to relief that is plausible

on its face.” Twombly, 550 U.S. at 544. Therefore, it was enough in Swier-

kiewicz for the plaintiff to allege that he was terminated in violation of Title VII

on the account of his national origin, providing relevant details of events lead-

ing up to his termination, relevant dates, and the nationalities of at least some

of the relevant individuals. See Swierkiewicz, 534 U.S. at 514.

Here, the district court dismissed for failure to plead sufficient facts to

show an “adverse employment action,” which is a judicially-coined term uti-

lized as shorthand for the statutory phrase “compensation, terms, conditions,

or privileges of employment.” 42 U.S.C. § 2000e-2(a)(1). As a statutory ele-

ment of a disparate-treatment claim, an adverse employment action is part of

the “ultimate question” in Title VII disparate-treatment claims: “whether a

defendant took the adverse employment action against a plaintiff because of

[his] protected status.” 6 Therefore, the two essential elements of a disparate-

treatment claim are (1) an adverse employment action that (2) occurs as the

result of discrimination based on one’s protected status. 7 Regardless of

whether the plaintiff proceeds to provide direct or indirect evidence of discrim-

ination, those two elements must be established to maintain a disparate-

treatment claim; juries are instructed accordingly, 8 and plaintiffs must plead

6 Kanida, 363 F.3d at 576 (emphasis added); see also Raj, 714 F.3d at 331. In Swier-

kiewicz, the complaint was adequate because it pleaded both an adverse employment action

(“termination”) and discriminatory intent (“based on national origin”). Swierkiewicz,

534 U.S. at 514.

7 See 42 U.S.C. § 2000e-2(a)(1); see also Kanida, 363 F.3d at 576.

8 See Kanida, 363 F.3d at 576; see also FIFTH CIRCUIT LABOR AND EMPLOYMENT LAW

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accordingly. 9 Therefore, although an adverse employment action happens to

be a part of the prima facie case under McDonnell Douglas, the district

court―because “adverse employment action” is also an essential element of a

disparate-treatment claim―did not err in considering whether it was properly

pleaded.

II.

Contrary to the majority’s holding, Thompson failed to plead sufficient

facts to show an adverse employment action under Fifth Circuit precedent. As

noted by the majority, we recognize only “ultimate” employment decisions as

actionable adverse employment actions for Title VII discrimination claims. 10

Ultimate employment decisions include only hiring, firing, promoting, failing

to promote, demoting, granting leave, and compensating. 11 Employment

actions such as a purely lateral transfer, 12 reprimands, 13 those that only limit

a potential an employee’s opportunity for promotion or lateral transfer, 14 and

those that “do[] not affect job duties, compensation, or benefits” 15 are not

PATTERN JURY CHARGES 13–17 (2009).

9 See, e.g., Raj, 714 F.3d at 331 (“Raj’s complaint and speculation did not allege any

facts, direct or circumstantial, that would suggest LSU’s actions were based on Raj’s race or

national origin or that LSU treated similarly situated employees of other races or national

origin more favorably. Because Raj has failed to raise his right to relief above the speculative

level, we affirm the dismissal of Raj’s complaint under Rule 12(b)(6) for failure to state a

claim.” (citation and internal quotation marks omitted)).

10 See McCoy v. City of Shreveport, 492 F.3d 551, 560 (5th Cir. 2007) (per curiam); see

also Pegram v. Honeywell, Inc., 361 F.3d 272, 282 (5th Cir. 2004); Banks v. E. Baton Rouge

Parish Sch. Bd., 320 F.3d 570, 575 (5th Cir. 2003).

11 See Alvarado v. Tex. Rangers, 492 F.3d 605, 612 (5th Cir. 2007); Pegram, 361 F.3d

at 282; Banks, 320 F.3d at 575; Sharp v. City of Hous., 164 F.3d 923, 933 n.21 (5th Cir. 1999).

12 See Burger v. Cent. Apt. Mgmt., Inc., 168 F.3d 875, 879 (5th Cir. 1999).

13 See Sharp, 164 F.3d at 933 n.21.

14 See Banks, 320 F.3d at 575–76.

15 Pegram, 361 F.3d at 282.

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actionable adverse employment actions.

Importantly here, the loss of some job responsibilities is insufficient

under this standard. 16 Also key for the disposition of this case, the law of this

circuit imposes a “strict” standard, 17 one that has been recognized as the most

stringent among our sister courts, with only the Eleventh Circuit having a

comparable one. 18

The majority errs in holding that Thompson’s alleged loss of job respon-

sibilities meets this exacting standard. By importing the lower “materially

adverse” employment-actions standard of our sister circuits, the majority sub

silentio overrules our requirement of an ultimate employment action. Essen-

tially, under the majority’s notion, even the restriction of job duties may now

be deemed a sufficient employment action where the plaintiff merely alleges

that the restrictions are “material.” Although that approach might be appro-

priate under the law as it has been interpreted by other courts of appeals, it is

not the law here, at least not until today.

Although Thompson pleaded that his loss of job responsibilities

amounted to an effective demotion, such a conclusional assertion deserves no

weight. Instead, we must consider whether the job restrictions as pleaded con-

stitute an ultimate employment action required to state a disparate-treatment

claim. Under our standard, the loss of some job responsibilities, without more,

is not an ultimate employment action. The distinction may seem formulistic,

16 See Mota v. Univ. of Tex. Hous. Health Sci. Ctr., 261 F.3d 512, 521 (5th Cir. 2001);

see also Williams v. U.S. Dep’t of Navy, 149 F. App’x 264, 269–70 (5th Cir. 2005) (per curiam).

17 See Pegram v. Honeywell, Inc., 361 F.3d 272, 282 (5th Cir. 2004).

18 See, e.g., Autumn George, Note, “Adverse Employment Action”—How Much Harm

Must Be Shown To Sustain a Claim of Discrimination Under Title VII?, 60 MERCER L. REV.

1075, 1083–87 (2009); see also Michael Rusie, Note, The Meaning of Adverse Employment

Actions in the Context of Title VII Retaliation Claims, 9 WASH. U. J.L. & POL’Y 379, 385–89

(2002).

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but its purpose is significant: We do not want to get involved in every dispute

between employer and employee. In the end, if the restriction of job responsi-

bilities is egregious enough, the employee can seek redress with a constructive-

discharge claim. See McCoy, 492 F.3d at 557−58.

The majority bases its contrary holding on cases from other circuits, our

unpublished decision in Schirle v. Sokudo USA, LLC, 484 F. App’x 893 (5th

Cir. 2012), and our opinion regarding lateral transfers in Alvarado v. Tex.

Rangers, 492 F.3d 605, 612 (5th Cir. 2007). I will address each basis for the

majority’s theory in turn.

A.

The majority cites decisions of the Sixth, Seventh, and District of Colum-

bia Circuits in support of its conclusion, but none of those utilizes the “ultimate

employment action” standard that the law properly requires. Instead, they

apply the lower “materially adverse employment action” standard. 19

Instances, under a less exacting standard, in which the restriction on job

duties―viewed by itself―was deemed an adverse employment action lends no

persuasive support for the proposition that such restrictions should meet our

more demanding standard. Therefore, the decisions of the other courts of

appeals are interesting but irrelevant.

B.

In holding that the loss of some job responsibilities may be enough if they

affect material responsibilities, the majority also relies on Schirle, which is

19 See Michael v. Caterpillar Fin. Servs. Corp., 496 F.3d 584, 594 (6th Cir. 2007);

Czekalski v. Peters, 475 F.3d 360, 364 (D.C. Cir. 2007); Dahm v. Flynn, 60 F.3d 253, 257 n.2

(7th Cir. 1994).

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neither binding precedent (being unpublished), good law, nor persuasive.

There the panel, although ostensibly applying our ultimate-employment-

action standard, in fact imported the materially-adverse-employment-action

standard of Crady v. Liberty National Bank & Trust Co. of Indiana, 993 F.2d

132, 136 (7th Cir. 1993), 20 as referenced in a parenthetical in Burlington Indus-

tries, Inc. v. Ellerth, 524 U.S. 742, 761 (1998).

That might be persuasive if, after Burlington Industries, this circuit had

adopted the less exacting standard used in the Seventh Circuit, but the oppo-

site is true: Even after the Supreme Court’s reference to the Seventh Circuit,

we reaffirmed our application of the much stricter ultimate employment action

standard in McCoy. 21 Because Schirle improperly applied the wrong test, it is

irrelevant here.

C.

The majority relies heavily on Alvarado v. Texas Rangers, 492 F.3d 605

(5th Cir. 2007), and the three § 1983 retaliation cases cited therein, 22 in theor-

izing that employment actions that solely affect job duties can constitute the

equivalent of a demotion and, therefore, an ultimate employment decision. In

Alvarado, however, the plaintiff claimed that a denial of a transfer to a new

position could be considered an ultimate employment action—contrary to the

20 “[A] materially adverse change in the terms and conditions of employment must be

more disruptive than a mere inconvenience or an alteration of job responsibilities.” Crady,

993 F.2d at 136.

21 McCoy, 492 F.3d at 560 (“Even though our precedent recognizing only ‘ultimate

employment decisions’ as actionable adverse employment actions remains controlling for

Title VII discrimination claims and therefore continues to justify summary judgment dismis-

sal of McCoy’s discrimination claims, her retaliation claims require a closer look post-

Burlington Northern.”).

22 See Sharp v. City of Hous., 164 F.3d 923 (5th Cir. 1999); Forsyth v. City of Dall., 91

F.3d 769 (5th Cir. 1996); Click v. Copeland, 970 F.2d 106 (5th Cir. 1992).

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general rule that lateral transfers are not ultimate employment actions—if the

transfer would have most accurately been considered a promotion. See Alva-

rado, 492 F.3d at 611–12. In support of that proposition, the court cited Sharp,

Forsyth, and Click, three retaliation cases in which, after considering a number

of factors, including the change or loss of job duties, this court had held that a

transfer can be the equivalent to a demotion. Alvarado, id. at 612−13.

Unlike the present case, each of the four cases at issue involved a trans-

fer from one position to another. No decision of this court has expanded the

application of Alvarado to situations that do not involve transfers. That is

important, because such transfers involve more than the restriction of job

responsibilities and could, therefore, be considered demotions.

For example, in Click, deputy sheriffs were transferred from the law-

enforcement division to a new position as jail guards. See Click, 970 F.2d

at 109. Yes, they were still deputy sheriffs, but they now held a different

position with different job responsibilities. In Sharp, a police officer was trans-

ferred from the horse-mounted division to a teaching post. Yes, the employee

was still a police officer, but she was in a new position. See Sharp, 164 F.3d at

923, 933. In Forsyth, two police officers were transferred from the intelligence

unit to new positions as night uniformed patrolmen. Yes, they were still police

officers, but they now held a new position. See Forsyth, 91 F.3d at 774. Finally,

in Alvarado, a female police officer was denied a transfer to the Texas Rangers.

Yes, she was still a police officer, but she was denied a transfer to a new posi-

tion. See Alvarado, 492 F.3d at 609−11.

One could imagine that Thompson could have been transferred to the

homicide division, for example. He would have retained his rank as detective

but would be working a “new position.” Instead, he has not been denied or

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forced into any transfer. He does not hold a new position but remains a detec-

tive in the drug division. His claim is not of a transfer to a new position that

is the equivalent of a demotion; instead, the job duties as a detective in his old

position have been restricted.

In essence, Thompson and the majority urge an expansion of Alvarado

from (a) a consideration of when transfers can be considered either demotions

or promotions to (b) a determination of when any employment action may be

properly considered a demotion. In doing so, however, this court would be

superseding our precedents holding that employment actions that affect job

duties alone—without change in title, compensation, benefits, or position—do

not constitute ultimate employment actions.

Alvarado involves a lateral transfer between positions and not, as here,

a restriction of job responsibilities. Id. at 613−14. There is no indication in the

pleadings that lead investigator or evidence officer is a separate position that

has been foreclosed. Instead, these restrictions are represented in the plead-

ings as merely a loss in job responsibilities with no corresponding change in

benefits, compensation, or position. Although it might be accurate to suggest

that these restrictions in some way restrict Thompson’s potential future oppor-

tunities, this is not enough to constitute an adverse employment action under

Fifth Circuit law. 23

This case is more properly controlled by our precedents regarding the

mere loss of job responsibilities, 24 which would require us to hold that these

23See Banks, 320 F.3d at 575–76; Burger, 168 F.3d at 878–80.

24See, e.g., Hernandez v. Crawford Bldg. Material Co., 321 F.3d 528, 532 n.2 (5th Cir.

2003); Mota v. Univ. of Tex. Hous. Health Sci. Ctr., 261 F.3d 512, 521 (5th Cir. 2001); Watts

v. Kroger Co., 170 F.3d 505, 511–12 (5th Cir. 1999).

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restrictions are not adverse employment actions, so I would affirm the judg-

ment of dismissal. Because the majority, though conscientiously, has decided

otherwise, I respectfully dissent.

19