The opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRTH CIRCUIT
No. 01-50452
TERENCE GREGORY,
Plaintiff-Appellant,
VERSUS
TEXAS YOUTH COMMISSION; GIDDINGS STATE SCHOOL; STAN DEGEROLAMI,
Superintendent, in his official capacity and individually;
ANTHONY KING, Residential Dorm Director, in his official capacity
and individually; CAROL CARMEAN, Director of Human Resources, in
her official capacity and individually; DAVE DAVIS, JCO-IV
Supervisor, in his official capacity and individually; LINDA
SMITH, Assistant Superintendent,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Texas
(99-CV-317)
June 28, 2002
Before DUHE’, BARKSDALE, and DENNIS, Circuit Judges.
DUHÉ, Circuit Judge:1
Terence Gregory (“Gregory”) appeals the district court’s grant
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Pursuant to 5TH CIR. R. 47.5, the Court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in 5TH CIR. R. 47.5.4.
of summary judgment on his retaliation claims and the grant of
qualified immunity to the individual defendants. Because Gregory
neither made a prima facie case of retaliation nor overcame
qualified immunity, we AFFIRM.
FACTUAL AND PROCEDURAL BACKGROUND
The Texas Youth Commission (“TYC”) is a state agency that
administers the juvenile incarceration and rehabilitation system
for the State of Texas. Giddings State School (“Giddings”) is
administered by TYC, and houses juvenile offenders. Giddings hired
Gregory as a full-time Youth Activity Supervisor I (“YAS I”) in
1981. By 1992, Gregory had become a YAS IV, a supervisory position.
Gregory applied for the YAS IV position three times before
receiving the promotion, and filed discrimination charges for being
passed over the first two times.
At all times relevant to this lawsuit, Stan DeGerolami was
Assistant Superintendent and Superintendent of Giddings. From 1996
to 2000, Lynda Smith served as Assistant Superintendent at
Giddings. From 1994 to 1999, Anthony King (“King”) was Director of
Residential Life at Giddings, and Gregory’s immediate supervisor.
At all times relevant to this lawsuit, Carol Carmean (“Carmean”)
was the Administrator of Human Resources at Giddings, responsible
for processing all personnel actions and administering employees’
pay and benefits. In 1997, David Davis served as Gregory’s
immediate supervisor.
Charges of sexual harassment were brought against Gregory,
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which he alleges were trumped up by King and Carmean. The
investigator concluded that Gregory did not engage in sexual
harassment, but the TYC legal department nonetheless recommended
Gregory’s employment be terminated because there was evidence that
he engaged in a consensual romantic relationship with a subordinate
and that he mistreated his staff. Gregory was instead demoted and
placed on probation. He filed a grievance, and the grievance
committee upheld his demotion.
Gregory then filed discrimination and retaliation charges.
After this, he consistently received written reprimands for failing
to report to work, leaving work without ensuring adequate coverage,
and giving students money in violation of TYC policy. Gregory also
claims he was denied leave without justification and was denied the
opportunity to apply for a promotion.
In 2000, Gregory was considered for a promotion and was not
selected. After he filed a grievance, TYC administrators reviewed
the selection process and agreed it was flawed. The selection was
redone, and Gregory received the promotion.
Gregory filed (in relevant part) a complaint alleging race
discrimination, retaliation and denial of due process under Title
VII, Section 1981, and Section 1983. The case was referred, after
consent of all parties, to a Magistrate Judge for disposition. The
defendants moved for summary judgment on all claims, and the
Magistrate Judge granted summary judgment on all claims except
Gregory’s Title VII race discrimination claim based on his 1996
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demotion. After a jury trial on the remaining race discrimination
claim, a verdict was returned for the defendants. The Magistrate
Judge entered judgment and awarded costs to the defendants. At
issue in this timely appeal are only the grant of summary judgment
on Gregory’s retaliation claim, and the grant of qualified immunity
to the individual defendants.
DISCUSSION
I. Standard of Review
This court reviews de novo a grant of summary judgment. Walker
v. Thompson, 214 F.3d 615, 624 (5th Cir. 2000). Summary judgment is
appropriate “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment
as a matter of law.” Fed. R. Civ. P. 56(c). Doubts are to be
resolved in favor of the non-moving party, and any reasonable
inferences are to be drawn in favor of that party. Burch v.
Nagodoches, 174 F.3d 615, 619 (5th Cir. 1999).
II. Retaliation
To survive summary judgment in a Title VII retaliation claim,
a plaintiff must first establish a prima facie case of retaliation.
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817,
1824, 36 L. Ed.2d 668 (1973). A prima facie case of retaliation
exists if the plaintiff shows (1) that he participated in activity
protected by Title VII; (2) that he suffered an adverse employment
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action; and (3) that a causal connection exists between the
protected activity and the adverse employment action. Messer v.
Meno, 130 F.3d 130, 140 (5th Cir. 1997). Adverse employment actions
are ultimate employment decisions, such as “hiring, granting leave,
discharging, promoting, and compensating.” Mattern v. Eastman Kodak
Co., 104 F.3d 702, 707 (5th Cir. 1997). Actions not considered
“ultimate” are not compensable because they lack consequence. Id.
at 708.
Because we agree with the Magistrate Judge that Gregory failed
to show that he suffered an adverse employment action, we need not
discuss the remainder of the legal standard for a retaliation
claim. Discussion of Gregory’s failure to allege an adverse
employment action follows.
A. Denial of Promotion
Denial of promotion and merit increases can be adverse
employment actions redressable under Title VII, if plaintiff
presents evidence that he would have received a promotion or merit
increase but for the retaliation. Seaman v. CSPH, Inc., 179 F.3d
297, 301 (5th Cir. 1999). In other words, there must be evidence
that the decisions had an ultimate effect. Gregory failed to set
forth any such evidence.
B. Demotion
Demotion is an adverse employment action for Title VII
retaliation purposes. Evans v. Houston, 246 F.3d 344, 351 (5th Cir.
2001). However, Gregory failed to even argue his demotion was
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retaliatory until after summary judgment was granted against him.
Until he filed his Motion for Reconsideration of Summary Judgment,
he argued he was demoted because of racial discrimination. Even
when he claimed after summary judgment that demotion was a
retaliatory adverse employment action, he failed to introduce any
supporting evidence. Without any timely pleading or evidence of
demotion as a retaliatory adverse employment action, the district
court had no choice but to grant summary judgment. See Wallace v.
Texas Tech Univ., 80 F.3d 1042, 1052 (5th Cir. 1996).
C. Written Reprimands
We have consistently held that reprimands do not constitute
adverse employment actions for Title VII retaliation purposes.
Mattern, 140 F.3d at 707-08; Messer, 130 F.3d at 140. However,
Gregory argues that his written reprimands precluded him from
consideration for promotions and merit increases under TYC policy,
and therefore had a direct effect on ultimate employment decisions.
As such, he argues they are actionable adverse employment actions.
In Dollis v. Rubin, 77 F.3d 777 (5th Cir. 1995), we considered
a similar argument. The plaintiff there argued that denial of a
“desk audit” had restricted her opportunities for promotion. Id. at
779. We held that because the denial of a desk audit had only a
tangential effect on plaintiff’s upward mobility by removing her
from consideration for a promotion, and not an ultimate effect such
as causing her to lose her job, it was not actionable under Title
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VII. Id. at 782.
Gregory’s argument is substantially the same as Dollis’. He
seeks to raise mediate employment decisions to ultimate status
based on their effect on pay raise and promotional opportunities.
However, our holding in Dollis demonstrates our reluctance to
extend Title VII coverage that far. The written reprimands did not
cause Gregory to lose his job, just as the denial of a desk audit
did not have an ultimate effect on Dollis. In any event, Gregory
has not shown an instance where he was otherwise entitled to a
promotion but for having a reprimand on file.
D. Denial of Leave
Denial of leave can be an adverse employment action for
purposes of Title VII retaliation claims, if the denial is
substantial. Mota v. University of Texas Houston Health Sci. Ctr.,
261 F.3d 512 (5th Cir. 2001). In Mota, we addressed the denial of
six months of paid leave for health reasons, which resulted in a
loss of the position. Id. at 521-22.
Here, Gregory’s alleged denials of leave constitute a much
smaller limitation. He was not denied the credit of his annual
vacation leave balance, he was merely restricted in the use of that
leave on a day-by-day basis. Moreover, he did not lose his
position, which would be an ultimate effect. His denial of leave is
a minimal restriction that does not amount to an ultimate
employment decision.
III. Qualified Immunity
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Qualified immunity protects a state official from civil
liability for damages based upon the performance of discretionary
functions, “unless at the time and under the circumstances of the
challenged circumstances of the challenged conduct all reasonable
officials would have realized that it was proscribed by the federal
law on which the suit is founded.” Pierce v. Smith, 117 F.3d 866,
871 (5th Cir. 1997). Qualified immunity is an “entitlement not to
stand trial or face the other burdens of litigation,” Mitchell v.
Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 2815, 86 L. Ed.2d 411
(1985), with its purpose being to “avoid excessive disruption of
government and permit the resolution of many insubstantial claims
in summary judgment.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102
S.Ct. 2727, 2738, 73 L. Ed. 2d 396 (1982).
The threshold question in a qualified immunity analysis is
whether the facts alleged show the individual’s conduct violated a
constitutional right. Saucier v. Katz, 121 S.Ct. 2151, 2156, 150 L.
Ed.2d 272 (2001). Because we find the answer to that question is
no, we need not address the remainder of the qualified immunity
test.
Gregory claims that he was deprived of a liberty interest when
he was demoted. In order to establish a liberty interest that
implicates the Fourteenth Amendment, the challenged adverse
employment action must be essentially a loss of employment.
Schultea v. Wood, 27 F.3d 1112, 1117-18 (5th Cir. 1994). For this
reason, transfers and one-step demotions do not invoke
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constitutional protections. Moore v. Otero, 557 F.2d 435, 437-38
(5th Cir. 1977) (transfer); Schultea, 27 F.3d at 1117-18
(demotion).
Because Gregory failed to plead a constitutionally cognizable
liberty interest, the defendants are entitled to qualified
immunity. Yates v. Stalder, 217 F.3d 332, 334 (5th Cir. 2000).
CONCLUSION
For the foregoing reasons, we find that Gregory did not make
a prima facie case of retaliation, nor did he overcome qualified
immunity, and we therefore AFFIRM.
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