Randy Jenkins v. City of San Antonio Fire Dept

Case: 14-50483 Document: 00513011661 Page: 1 Date Filed: 04/20/2015

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-50483 United States Court of Appeals

Fifth Circuit

FILED

RANDY JENKINS, April 20, 2015

Lyle W. Cayce

Plaintiff - Appellant Clerk

v.

CITY OF SAN ANTONIO FIRE DEPARTMENT,

Defendant - Appellee

Appeal from the United States District Court

for the Western District of Texas

Before JONES and HAYNES, Circuit Judges, and CRONE, District Judge.*

HAYNES, Circuit Judge:

Appellant Randy Jenkins filed suit against the City of San Antonio Fire

Department (“Fire Department”), alleging discrimination on the basis of race

and age, and retaliation, in violation of Title VII. Because Jenkins’s complaint

was, in part, untimely, and failed to establish a prima facie case of

discrimination and retaliation, we AFFIRM the district court’s grant of

summary judgment in favor of the Fire Department.

* District Judge of the Eastern District of Texas, sitting by designation.

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No. 14-50483

I. Background

Randy Jenkins, a 51-year-old African-American male, has served in the

San Antonio Fire Department since 1986. The Fire Department is headed by

the Fire Chief, Charles Hood, who oversees a deputy chief, assistant chiefs,

district chiefs, captains, lieutenants, engineers, and firefighters. In 2008,

Jenkins was appointed as one of two district chiefs of Fire Prevention,

reporting directly to Assistant Chief Earl Crayton. In this capacity, Jenkins

was responsible for oversight of Community Safety & Education (“CS&E”).

When the other district chief in the Fire Prevention Division left, Jenkins

temporarily assumed his responsibilities, which included oversight of Arson,

Special Events, Inspections, and Administration. Eventually, a new district

chief was assigned to the Fire Prevention Division and given responsibility for

CS&E while Jenkins retained oversight of Special Events, Inspections, and

Administration. Assistant Chief Crayton oversaw the Arson office.

After the recently appointed district chief left in 2009, Captain

Christopher Monestier was hired as his replacement and assigned oversight of

CS&E and Special Events. In 2011, Assistant Chief Crayton “realigned”

Jenkins and Monestier’s duties. Jenkins would oversee CS&E, while

Monestier was delegated responsibility for Inspections and Special Events.

Jenkins did not suffer a reduction in rank or benefits but perceived the

realignment as discrimination based on his race, color, or age as well as

retaliation for giving a statement supporting an EEOC charge against

Crayton. Jenkins filed an EEOC charge to this effect on August 19, 2011, and

the EEOC issued a right-to-sue letter on May 16, 2012.

Monestier vacated his position within the division in 2012, and Assistant

Chief Crayton solicited applications for the open position from all district

chiefs. A review panel was formed to interview and recommend a candidate

for approval. The panel was composed of a director in the City’s Department

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of Development Services, the Chief of Operations for the Fire Department, and

a deputy chief in the Police Department. Two candidates applied for the

position, Jenkins and District Chief Matias Jimenez, a Hispanic male. The

panel unanimously chose Jimenez, and his appointment was approved by Fire

Chief Hood. Jimenez was given responsibility for Inspections, Administration,

and Special Events, while Jenkins retained oversight of CS&E. On August 17,

2012, Jenkins filed an additional charge with the EEOC, complaining that he

was not selected for the position for discriminatory and retaliatory reasons.

Jenkins filed suit in district court on August 20, 2012, alleging that the

2011 reassignment of duties was a product of race and age discrimination. He

also included a retaliation claim, alleging that Assistant Chief Crayton was

punishing Jenkins for making statements supporting a charge against

Crayton.

On May 16, 2013, Assistant Chief Crayton again realigned office

responsibilities, charging Jenkins with oversight of boarding homes, schools,

hospitals, nursing homes, and congregate living, all of which had previously

been under the purview of Inspections. He was also tasked with overseeing

special events, HazMat, after-hours details, and supervision of engineers

assigned to the Fire Marshal’s Office. All of this was in addition to his CS&E

responsibilities.

On June 26, 2013, Jenkins amended his complaint in district court to

include the claims raised in his second EEOC charge; namely, that the Fire

Department discriminated against him on the basis of his race and age by

selecting Jimenez to be District Chief of Inspections. He also alleged that the

Fire Department refused to appoint him to the position in retaliation for filing

the first EEOC charge.

The district court granted summary judgment in favor of the Fire

Department. It held that Jenkins’s discrimination and retaliation claims

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stemming from the 2011 reassignment of duties were not timely filed. Even

assuming his suit was timely, the district court found that Jenkins’s

discrimination and retaliation claims stemming from both the 2011

reassignment and Jenkins’s non-selection as District Chief of Inspections in

2012 failed because he was unable to establish a prima facie case. Jenkins

timely appealed.

II. Discussion

The EEOC issued a right-to-sue letter on May 16, 2012, allowing Jenkins

to sue for the discrimination and retaliation claims raised in his 2011 EEOC

charge. Jenkins had 90 days from the date of receipt to file suit, but he is

unsure about when he received the notice. See 42 U.S.C. § 2000e-5(f)(1).

“When the date on which a right-to-sue letter was actually received is either

unknown or disputed, courts have presumed various receipt dates ranging

from three to seven days after the letter was mailed.” Taylor v. Books A

Million, Inc., 296 F.3d 376, 379 (5th Cir. 2002). The district court, applying a

three-day presumption, found that Jenkins received notice on May 19, 2012,

which required Jenkins to file his complaint by August 17, 2012. Because

Jenkins filed his complaint on August 20, 2012, the district court held it

untimely.

Jenkins urges us to apply a more lenient presumption of five days, which

will render his suit timely. See FED. R. CIV. P. 6(a)(1)(c) (Although August 20,

2012, is ninety-six days after issuance of the right to sue letter, August 19,

2012, was a Sunday. For the purposes of computing time to file suit, “if the

last day is a Saturday, Sunday, or legal holiday, the period continues to run

until the end of the next day.”). We have applied different presumptions in

different contexts and have noted that “[t]he exact number of days is thus an

open question in this Circuit.” Morgan v. Potter, 489 F.3d 195, 196 (5th Cir.

2007); Martin v. Alamo Cmty. Coll. Dist., 353 F.3d 409, 411 (5th Cir. 2003)

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(applying a three-day presumption). Moreover, the majority of other circuit

courts apply a three-day presumption of receipt, primarily citing to Federal

Rule of Civil Procedure 6(d), 1 which assumes receipt three days after service is

mailed. See, e.g., Payan v. Aramark Mgmt. Servs. Ltd. P’ship, 495 F.3d 1119,

1125 (9th Cir. 2007); Kerr v. McDonald’s Corp., 427 F.3d 947, 953 (11th Cir.

2005); Seitzinger v. Reading Hosp. and Med. Ctr., 165 F.3d 236, 239 (3d Cir.

1999); Nguyen v. Inova Alexandria Hosp., 187 F.3d 630, 1999 WL 556446, at

*3 (4th Cir. 1999) (unpublished); Smith–Haynie v. District of Columbia, 155

F.3d 575, 578 n.3 (D.C. Cir. 1998); Sherlock v. Montefiore Med. Ctr., 84 F.3d

522, 525–26 (2d Cir. 1996); see also Baldwin Cnty. Welcome Ctr. v. Brown, 466

U.S. 147, 148 n.1 (1984) (presuming the plaintiff received a right-to-sue letter

three days after delivery based on Federal Rule of Civil Procedure 6(e)). But

see Lozano v. Ashcroft, 258 F.3d 1160, 1164–65 (10th Cir. 2001) (noting that

the court has approved either a three-day or a five-day presumption); Graham–

Humphreys v. Memphis Brooks Museum of Art, Inc., 209 F.3d 552, 557 n.9 (6th

Cir. 2000) (“The Sixth Circuit allots two days for postal delivery of a RTS notice

beyond the three day period allowed by Federal Rule of Civil Procedure 6(e).”).

We have repeatedly noted that a three-day presumption is permissible,

and have applied such a presumption. See Martin, 353 F.3d at 411; see also

Morgan, 489 F.3d at 196 (“[W]e have previously expressed the view that a

three-day presumption is reasonable . . . .”). Appellant’s arguments to the

contrary are unavailing. Jenkins cites to 29 C.F.R. § 1614.604(b) for the

proposition that a document is timely if, in the absence of a postmark, it is

received within five days of the expiration of the applicable filing period.

Unfortunately for Jenkins, this provision applies only to federal employees,

1 Federal Rule of Civil Procedure 6 has since been amended so that the former Rule

6(e) is now found in Rule 6(d).

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which Jenkins is not. See 29 C.F.R. § 1614.103. Jenkins’s policy arguments

are likewise unpersuasive. 2 We conclude that, where the date of receipt is not

known, 3 courts should apply a presumption that the plaintiff received the

notice in three days. Accordingly, we affirm the district court’s holding that

Jenkins’s claims arising from his 2011 EEOC charge were not timely filed.

Because Jenkins’s complaint arising from his 2011 allegations of

discrimination and retaliation was not timely filed, we turn to the allegations

enumerated in his 2012 EEOC charge. Jenkins contends that he was

discriminated against on the basis of his race and age when he was not selected

for the position of District Chief of Inspections, and that his non-selection for

the position was also in retaliation for filing the 2011 EEOC charge. The

district court found that Jenkins failed to state a prima facie case of

discrimination because his non-selection for the Inspections position was not

an adverse employment action.

We review the district court’s grant of summary judgment de novo.

Haire v. Bd. of Supervisors of La. State Univ. Agric. & Mech. Coll., 719 F.3d

356, 362 (5th Cir. 2013). Summary judgment is appropriate if “the movant

shows that there is no genuine dispute as to any material fact and the movant

is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). “We construe

all facts and inferences in the light most favorable to the nonmoving party,”

Dillon v. Rogers, 596 F.3d 260, 266 (5th Cir. 2010), but “[s]ummary judgment

may not be thwarted by conclusional allegations, unsupported assertions, or

2 Jenkins seemingly argues that application of the three-day presumption does not

afford the EEOC’s regulations appropriate deference. Given that the EEOC regulations cited

by Jenkins are inapplicable here, this argument necessarily fails.

3 Such a presumption is unnecessary and inappropriate, of course, if there is other

evidence showing a date of receipt earlier or later, such as postal evidence or testimony from

the plaintiff or other persons with personal knowledge.

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presentation of only a scintilla of evidence,” McFaul v. Valenzuela, 684 F.3d

564, 571 (5th Cir. 2012).

When, as here, there is no direct evidence of discrimination, we apply the

modified McDonnell Douglas 4 burden-shifting framework. See Burrell v. Dr.

Pepper/Seven Up Bottling Grp., Inc., 482 F.3d 408, 411 (5th Cir. 2007). Under

the modified McDonnell Douglas approach, Jenkins must first establish a

prima facie case of racial discrimination by showing that “(1) he belongs to a

protected group; (2) he was qualified for the position sought; (3) he suffered an

adverse employment action; and (4) he was replaced by someone outside the

protected class.” Price v. Fed. Express Corp., 283 F.3d 715, 720 (5th Cir. 2002).

We agree with the district court’s assessment that Jenkins did not suffer

an adverse employment action. While the denial of a purely lateral transfer is

not an adverse employment action redressible under Title VII, see Burger v.

Cent. Apartment Mgmt., Inc., 168 F.3d 875, 879 (5th Cir. 1999), “the denial of

a transfer may be the objective equivalent of the denial of a promotion, and

thus qualify as an adverse employment action, even if the new position would

not have entailed an increase in pay or other tangible benefits[,] if the position

sought was objectively better.” Alvarado v. Tex. Rangers, 492 F.3d 605, 614

(5th Cir. 2007) (emphasis in original). As part of this inquiry, we evaluate

whether the position sought “entails an increase in compensation or other

tangible benefits; provides greater responsibility or better job duties; provides

greater opportunities for career enhancement; requires greater skill,

education, or experience; is obtained through complex selection process; or is

otherwise objectively more prestigious.” Id. (citations omitted).

4 McDonnell Douglas Corp. v. Green, 411 U.S. 792, 793 (1973).

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None of these factors support Jenkins. He would not benefit financially

as District Chief of Inspections, 5 nor does he offer evidence, beyond his

subjective beliefs, that the Inspections position was more prestigious or

required greater skill, education, or experience than his position as District

Chief in charge of CS&E. See Pegram v. Honeywell, Inc., 361 F.3d 272, 283

(5th Cir. 2004) (a plaintiff’s subjective belief, without more, is insufficient to

establish that a transfer resulted in a loss of prestige). In sum, Jenkins’s has

failed to establish that his non-selection as District Chief of Inspections was

an adverse employment action.

For the same reason, Jenkins is unable to establish a prima facie case of

age discrimination, which requires Jenkins to show, among other things, that

he suffered an adverse employment action. Smith v. City of Jackson, 351 F.3d

183, 196 (5th Cir. 2003). Not only did Jenkins not suffer an adverse

employment action for the reasons above, but also the employee hired in lieu

of Jenkins was less than two years younger than he. An age gap of less than

two years is insufficient to support a prima facie case of age discrimination.

See, e.g., O’Connor v. Consol. Caterers Corp., 517 U.S. 308, 313 (1996) (“In the

age-discrimination context, such an inference cannot be drawn from the

replacement of one worker with another worker insignificantly younger.”); see

also Earle v. Aramark Corp., 247 F. App’x 519, 523 (5th Cir. 2007)

(unpublished) (finding that a four year age gap was an insignificant age

difference that is not sufficient to support a prima facie case of age

discrimination); Rachid v. Jack In The Box, Inc., 376 F.3d 305, 312 (5th Cir.

2004) (stating that an age difference of five years is a “close question”).

5 While Jenkins claims that he has fewer opportunities for overtime pay as District

Chief of CS&E compared to District Chief of Inspections, he failed to rebut evidence that the

opposite is in fact true.

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Finally, Jenkins’s retaliation claim based on the 2012 selection process

also fails. He maintains that the Fire Department refused to appoint him as

District Chief of Inspections in response to his filing of the 2011 EEOC charge.

Where, as here, the Plaintiff does not provide direct evidence of retaliation, 6

Jenkins must show that (1) he engaged in conduct protected by Title VII; (2)

he suffered a materially adverse action; and (3) a causal connection exists

between the protected activity and the adverse action. See Aryain v. Wal-Mart

Stores Tex. LP, 534 F.3d 473, 484 (5th Cir. 2008). It is undisputed that the

filing of an EEOC charge is protected conduct. See Harvill v. Westward

Commc’ns, LLC, 433 F.3d 428, 439 (5th Cir. 2005).

A materially adverse action, in the retaliation context, is one which

might “dissuade[] a reasonable worker from making or supporting a charge of

discrimination.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68

(2006) (citation and internal quotation marks omitted). Jenkins’s retaliation

claim cannot satisfy this standard for largely the same reasons his

discrimination claims failed. The roles of District Chief of CS&E, which

Jenkins retained, and District Chief of Inspections were considered equivalent

within the Fire Prevention Division, and there is no evidence that they differed

in terms of compensation, benefits, working conditions, or other factors. See

Aryain, 534 F.3d at 485 (indicating that the transfer from an arduous and

prestigious position to another comparatively less important position could

weigh in favor of material adversity). Despite his assertion that the District

6 As part of Jenkins’s untimely 2011 discrimination claim, he proffered alleged direct

evidence of retaliation in the form of statements made by Assistant Chief Crayton in 2009 or

2010. Those statements by Assistant Chief Crayton do not benefit Jenkins here, as they were

made several years prior to the allegedly adverse employment action and thus lack sufficient

temporal proximity to serve as direct evidence. See, e.g., Ray v. United Parcel Serv., 587 F.

App’x 182, 188 (5th Cir. 2014) (unpublished) (finding that time span of four to thirteen

months between comments and alleged discriminatory conduct were too remote in time to

serve as direct evidence).

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Chief of CS&E is perceived as less prestigious and provides fewer avenues for

advancement, Jenkins acknowledges that the role was vital to the Fire

Department and that as District Chief of CS&E he served as the face of Fire

Prevention within the community. Furthermore, whether an employment

action is materially adverse is an objective query, and here Jenkins relies

solely on his subjective impressions for support. See White, 548 U.S. at 68–69.

Thus, while Jenkins clearly coveted the role of District Chief of Inspections, his

subjective preference is not enough to make his non-selection materially

adverse. Aryain, 534 F.3d at 485 (citing White, 548 U.S. at 68).

For the foregoing reasons we AFFIRM the judgment of the district court.

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