Petition for Writ of Certiorari — Hernandez v. Crawford Building Material Co., Dba Crawford's Discount Carpet Home and Floor Center and Malveau v. East Baton Rouge Parish School Board

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In The orsice of

Supreme Court of the nites States

JUAN HERNANDEZ,

Petitioner,

CRAWFORD BUILDING MATERIAL CO., etc.,

Respondent.

ROSA MALVEAU, et al.,

Petitioners,

Vv.

EAST BATON ROUGE PARISH SCHOOL BOARD, et al.,

Respondents.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

PETITION FOR A WRIT OF CERTIORARI

TIMOTHY B. GARRIGAN ERIC SCHNAPPER*

STUCKY, GARRIGAN & UNIVERSITY OF WASHINGTON

CASTETTER SCHOOL OF LAW

2803 North Street 1100 N.E. Campus Parkway

P.O. Box 631902 Seattle, WA 98105

Nacogdoches, TX (206) 616-3167

conan potty A Counsel for Petitioners

NANcY PICARD *Counsel of Record

ROBEIN, URANN & LURYE

2540 Severn Avenue

Suite 400

Metairie, LA 70002

(504) 885-9994

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

ae ae

QUESTIONS PRESENTED*

(1) Do the anti-retaliation provisions of Title VII and

the Age Discrimination in Employment Act, which forbid

an employer from discriminating against an employee for

seeking to enforce his or her rights under Title VII and

ADEA respectively, actually permit such retaliation so

long as the employer’s actions do not constitute an “ulti-

mate employment decision”?

(2) Does 42 U.S.C. § 1981, insofar as it forbids retalia-

tion against employees for opposing discrimination forbid-

den by that section, actually permit such retaliation so

long as the employer’s actions do not constitute an “ulti-

mate employment decision”?

(3) In a section 1983 action to enforce the First

Amendment, may a public employer retaliate against

employees for engaging in constitutionally protected

speech so long as that retaliation does not constitute

either an “ultimate employment decision” or a reprimand

or disciplinary action?

* Both Hernandez and Malveau involve claims under the anti-

retaliation provisions of Title VII. Hernandez also asserted a retaliation

claim under the ADEA and section 1981. Malveau, et al., also asserted

a retaliation claim under section 1983.

PARTIES

The parties in Hernandez are Juan Hernandez and

Crawford Building Material Company, doing business as

Crawford’s Discount Carpet Home and Floor Center.

The petitioners in Malveau (decided in the court of

appeals sub nom. Banks v. East Baton Parish School

Board) are Rosa Malveau, Tina Brooks, Shirley Brown,

Annette J. Gray, Mary Holmes, Annie Johnson, Amy Lane,

Dorothy McPipe, Alma Newman, Maggie Tucker, Bertha

Twine, Berthella Wallace, Edna Welch, and Nellie Wil-

liams. The respondents in Malveau are the East Baton

Rouge Parish School Board, Ingrid Kelley, Warren L.

Pratt, Jr., Press L. Robinson, Sr., Dr., Jacqueline Mims,

Patricia Hayne-Smith, Noel Hammatt, Roger Moser,

Daniel R. Henderson, Eldon R. Ledoux, Dalton Devall,

William P. Black and James Manley.

iii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED...........::csscsseeseeseesseesseees i

RII oo oscnssussessscnccsssessosocessssovevesessensneevescoosoeseceees ii

OPINIONS BELOW ...........:::ccccseseeeeeceeeseeeseseeeeeenenees 1

STATEMENT OF JURISDICTION..............:::0eeeeeeees 1

STATUTES INVOLVED ...........:::secccceetsseeseeeennneneeees 2

STATEMENT OF THE CASL..........:::scceeesseeseeeeneeeees 3

Hernandez..............00+ clk cadbah cbeitomnnansesokssuanshuanants 3

Banks/Malveau ............ccccseseeeeeeeeeeeeeeees sacbaeunesban 5

REASONS FOR GRANTING THE WRIT................. 8

I THERE IS A WIDELY RECOGNIZED

CONFLICT AMONG THE COURTS OF

APPEALS REGARDING WHETHER FEDERAL

LAWS PROTECTING EMPLOYEES FROM

RETALIATION ACTUALLY PERMIT RETALI-

ATION SO LONG AS IT DOES NOT TAKE

THE FORM OF AN “ULTIMATE EMPLOY-

MENT DECISION?” ..........::.:ssesseeeeeeeseeeeeeeeeeneees 8

Il. FEDERAL AGENCIES IN BRIEFS FILED

IN THE COURTS OF APPEALS ARE

ADVOCATING CONFLICTING INTERPRETA-

TIONS OF THE LAW...........::ccccssseseeseeeereeeeens 21

III. THE DECISIONS BELOW ARE IN CONFLICT

WITH THIS COURT’S DECISION IN

ROBINSON V. SHELL OIL CO., 519 U.S. 337

(ADB) o0000ccccceeneeee aiiaulinndebaianwivaiairentwnceaxcnepneninen 27

ic, aa ils a cnannetasevncnupaichebson 30

TABLE OF AUTHORITIES

Page

CASES:

Arnold v. United States Dept. of the Interior, 213

F.3d 196 CGA Cir. BOOB) 00.0 cssssecssieccscccnsconsessersosncsssosens 22

Bass v. Board of County Comm’rs, 256 F.3d 1095

CEE Ee, Svinte vecaceenskoncicnnnsipeasconieminntonein 15, 20

Berry v. Stevinson Chevrolet, 74 F.3d 980 (10th Cir.

SN oinsiecticaticnsecackccsteeenbniesbtoniibeansenteneaanteitaccsitiantennimshanlbtiie 19, 21

Burger v. Central Apartment Mgmt., 168 F.3d 875

Cs Cie. Ti enka dsisesnsicieeiininascon 12, 13

Collins v. State of Illinois, 830 F.2d 692 (7th Cir.

DE nticicacnionines ciciilescicedala hildeakcotelalesaduarnanhanauliliiaadatn 18

Connecticut Light & Power v. Secretary of Labor, 85

Pe Ge Ca Ge Fe bev cistrenstrictesiceecrcmnvitninn 26, 27

Connell v. Bank of Boston, 924 F.2d 1169 (1st Cir.

DOIN icinsinsicsescndelcmccelanadcsle aneinn indaapeiioenueniutamalanaese 16

Dollis v. Rubin, 77 F.3d 777 (5th Cir. 1995) ............ 8,9, 11

Felton v. Polles, 315 F.3d 470 (5th Cir. 2002) .............000+ 12

Foley v. University of Houston Syst., 324 F.3d 310

CE Er Fe sx ccisicicsshanrahs ccidsihcebinntianianumniotenenidenina 10, 12

Garber v. New York City Police Dept., 1998 WL

614323 °S (2d Cie. Fane 12, TODS) ........crcssverseresecesesesss 17

Graham v. State Farm Mutual Ins., 193 F.3d 1274

CB Ce BI vicccssseicescatetnaneiaieresvesisiennonidaiiaansoonn 15

Green v. Administrators of the Tulane Educ. Fund,

BBE P.Bd GED (GC Cae. BOG) wcvcesecsncnesirssvenviscosesevesvevecese 10

Gu v. Boston Police Dept., 312 F.3d 6 (1st Cir. 2002)....... 16

Gunnell v. Utah Valley State College, 152 F.3d 1253

CIs Ce. BI vi xaciccavccssinensceinennnsassnicsveststendenanscingatinsntio 19

eh iahucintae

il te RRA SRG GR LEILA ig TONS

SGN he HPCs BR MP RM LAT TET AEE AT: Ane .

Pe Te Te Se ee ET FO a ee Oe Be en

TABLE OF AUTHORITIES — Continued

Page

Gupta v. Florida Bd. of Regents, 212 F.3d 571 (11th

Clix. DOOD) ..ncssvvencesasesesccnrensesennaunanevenenssbssnenenonesserwanenessnes 15

Gustafson, Inc. v. Bunch, 244 F.3d 134 (5th Cir.

ITN casas vsacsnesocienvnpnncomeneitnncenngreetenenerenymreeeetepemennmnsenn erst 27

Hernandez-Torres v. Intercontinental Trading, 158

F.3d 43 (1st Cir. 1998) .......ssssescsssresersererensnnensnrereneneneess 16

Heuer v. Weil-McLain, 203 F.3d 1021 (7th Cir.

I cs soosnncsncrccionsemnnsesesssvissnugwannnntniesessereenrePntsensesiroe 18

Hollins v. Atlantic Co., 188 F.3d 652 (6th Cir. 1999)....... 17

Hunt v. Rapides Healthcare Syst., 277 F.3d 757

(Bt Cir. 2002) ........cscsscssssvssesaressecscesensessencssenenseseenees 9,12

Jeffries v. State of Kansas, 147 F.3d 1220 (10th Cir.

SOME. sassorsosenarensnsnowennnnnsingnnnaneonbeintnsnnmucerneetentsnne? 19, 20

Kim v. Nash Finch Co., 123 F.3d 1046 (8th Cir.

SIT i cnescssenneonsocvcavenmnsnnapnenenemneensnenenmmnsrnapenscte sree 7e2™ 20

Knox v. State of Indiana, 93 F.3d 1327 (7th Cir. ~

NN _ <-sssvetnnensssecbinensinlnsennnmonnmesronnieecteirnsatanncint rents a 18

Ledergerber v. Stangler, 122 F.3d 1142 (8th Cir.

SOIT oscooxserenicevasnnnqpnensnbebacesnnnensnonnounctentnnceenene® joc 19

Manning v. Metropolitan Life Ins., 127 F.3d 686

(Sth Cir. 1997) ........cscscssssssosnsesessecesssenerncscecorenenenees 19, 20

Marrero v. Goya of Puerto Rico, 304 F.3d 7 (1st Cir.

SN a. pincomecbieensonmnenapnnnemeannesnmenamonnceenn nor 16

Mattern v. Eastman Kodak Co., 104 F.3d 702 (5th

Cir.), cert. denied, 522 U.S. 932 (1997)......... 9,10, 11, 17

Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986)........- 9

Messer v. Meno, 130 F.3d 130 (5th Cir. 1997) .......seeeeeees 10

TABLE OF AUTHORITIES -— Continued

Page

Mota v. University of Tex. Houston Health Sci. Ctr.,

BGR FG BER CI Ge. FED vesisesccresicinvvnesepccvecispncvsvenisnre 9

Passer v. American Chemical Soc., 935 F.2d 322

CES. GE. FE ieticcsicetnithiiinenniviiiiataminiins 19

Preda v. Nissho Iwai American Corp., 128 F.3d 789

COE Gr. BI ivi ckkstisntiincccciedeemiedtiadtatiien 18

Ray v. Henderson, 217 F.3d 1234 (9th Cir. 2000)... 14, 21, 22

Richardson v. New York State Dept. of Correctional

Serv., 180 F.3d 426 (2d Cir. 1999) .............ccccceeceeees 17, 20

Robinson v. Shell Oil Co., 519 U.S. 337 (1997)......... passim

Scusa v. Nestle U.S.A. Co., 181 F.3d 958 (8th Cir.

SO i vinensicihcceccecantcnttscicaucetdeavuieactaecesiaiines 20

Shannon v. Bellsouth Telecommunications, 292

FOR FES CET, BE ial ieticcedcdrtencooeds 15

Smart v. Ball State Univ., 89 F.3d 4387 (7th Cir.

Bs isiissisnicnsccnvetastecaiienciadsnisindioddlidesilsapdcliciimnealouaies 18

Smith v. St. Louis Univ., 109 F.3d 1261 (8th Cir.

SIIB Y i inccnisinnincssisccsiinnabincgietincsabaiiaissnccalbdiaaiulsa dis spanbanvaisetts 20

Sweeney v. West, 149 F.3d 550 (7th Cir. 1996)................. 20

Thomas v. Texas Dept. of Criminal Justice, 220

Fee BRD Ce Ce, Fr wench tans siditedncirssicneninstnsectnnsints 10

Torres v. Pisano, 116 F.3d 625 (2d Cir.), cert.

Gavibed,, GEERT. Ge CR Pivsinsecotstincisicinicavinsinnstciones 16

Trujillo v. New Mexico Dept. of Corrections, 1999

WL 194151 *3 (10th Cir., April 8, 1999)................. eee 20

Vasquez v. County of Los Angeles, 307 F.3d 884 (9th

Car; DOC ssncinestinsesbiinciiatevanietpnetiacaicaianeidaavambabieian 14

vii

TABLE OF AUTHORITIES — Continued

Page

Von Gunten v. Maryland, 243 F.3d 858 (4th Cir.

DOO1) ..cccoscscccsscerscccsessecccccvscccvessscsocsssccssenseees 15, 21, 22, 27

Walker v. Thompson, 214 F.3d 615 (5th Cir. a 10

Wanamaker v. Columbian Rope Co., 108 F.3d 462

(Qd Cir. 1997).....sscsssscsesseresscssnessssensenenenenssnenssesncnnenenenes 17

Watts v. Kroger Co., 170 F.3d 505 (5th Cir. 1999)........ 9,10

Welsh v. Derwinski, 14 F.3d 85 (1st Cir. 1994) .....16, 21, 22

White v. Burlington Northern & Santa Fe Ry. Co.,

310 F.3d 443 (6th Cir. 2002), reh. granted, $21 —

F.3d 1203 (6th Cir. 2003)..........::cesessreeeeeerereneens 17, 20, 25

White v. New Hampshire Dept. of Corrections, 221

F.3d 254 (Ast Cir. 2000) ..........:sssccssersecsreeesrnesserseeeneeenes 16

Wideman v. Wal-Mart Stores, 141 F.3d 1453 (11th

Cir. 1998).............cscsesccsssssseeeessnrenssecsreesesnsneceonees 15, 23, 28

Wyatt v. City of Boston, 35 F.3d 13 (1st Cir. 1994) .......... 16

Zaffuto v. City of Hammond, 308 F.3d 485 (5th Cir.

BOOZ). ....ccervercccocsseccerseresceccncenvssssnccsscsscensesstaconsessensesenss 13

STATUTES:

QB U.S.C. § 1254(1) ....cesccsceccesseseereserseesensenseserensensensennennees 1

QD U.S.C. § G23) ....ccsecsescesreeseeeeressensenneesreneenseneesnnes passim

AZ U.S.C. § 198 1.......ssccserseseeeseesesressreesensenseennsenseeneees 2, 3, 12

A U.S.C. § 19838.......cccseccesrsesseesnesereeennsennnsnsnsensenes 2, 7, 8, 12

AZ U.S.C. § 2000€-3(a) .......esseceeereeerrecereresnneesereeenseeners passim

AZ U.S.C. § 5B51(a) .....sceseesseesseensseeeeneennesensssnsensensenens cana ae

Texas Penal Code § 12.34..........ssssessseerreesreesersenensennnsenneees 3

PETITION FOR A WRIT OF CERTIORARI

Petitioners Juan Hernandez, Rosa Malveau, et al.,

respectfully pray that this Court grant a writ of certiorari

to review the judgments and opinions of the United States

Court of Appeals for the Fifth Circuit entered in Hernan-

dez v. Crawford Building Material Co. on February 21,

2003 and entered in Banks v. East Baton Rouge Parish

School Board on February 19, 2003.

OPINIONS BELOW

In Hernandez the February 21, 2003 opinion of the

court of appeals is reported at 321 F.3d 528 (5th Cir. 2003),

and is reprinted in the Appendix to the petition. (1a-11a).

The October 27, 2001 order of the district court, which is

not officially reported, is reprinted at pp. 12a-19a of the

Appendix. The August 9, 2001 decision of the district

court, which is not officially reported, is set out in pp. 20a-

29a of the Appendix.

In Banks the February 19, 2003 opinion of the court of

appeals is reported at 320 F.3d 570 (5th Cir. 2003), and is

reprinted in the Appendix to the petition. (30a-50a). The

June 5, 2001 opinion of the district court, which is not

officially reported, is set out at pp. 62a-75a of the Appen-

dix. The December 12, 2001 opinion of the district court,

which is not officially reported, is set out at pp. 51a-60a of

the Appendix.

STATEMENT OF JURISDICTION

The decision of the court of appeals in Hernandez was

entered on February 21, 2003. The decision of the court of

appeals in Banks was entered on February 19, 2003. This

Court has jurisdiction pursuant to 28 U.S.C. § 1254(1).

STATUTES INVOLVED

Section 704(a) of the 1964 Civil Rights Act, 42 U.S.C.

§ 2000e-3(a), provides in pertinent part:

It shall be an unlawful employment practice for

an employer to discriminate against any of his

employees or applicants for employment... be-

cause he has opposed any practice, made an

unlawful employment practice by this title, or

because he has made a charge, testified, assisted,

or participated in any manner in an investiga-

tion, proceeding, or hearing under this title.

Section 4(d) of the Age Discrimination in Employment

Act, 29 U.S.C. § 623(d), provides in pertinent part:

It shall be unlawful for any employer to dis-

criminate against any of his employees or appli-

cants for employment ... because such

individual ... has opposed any practice made

unlawful by this section, or because such indi-

vidual ... has made a charge, testified, assisted

or participated in any manner in an investiga-

tion, proceeding or litigation under this Act.

Section 1981 of 42 U.S.C. provides in pertinent part:

(a) All persons within the jurisdiction of the

United States shall have the same right in every

State and Territory to make and enforce con-

tracts, to sue, be parties, give evidence, and to

the full and equal benefit of all laws and proceed-

ings for the security of persons and property as is

enjoyed by white citizens... .

(b) For the purposes of this section, the term

“make and enforce contracts” includes the mak-

ing, performance, modification, and termination

of contracts, and the enjoyment of all benefits,

privileges, terms, and conditions of the contrac-

tual relationship.

Section 1983 of 41 U.S.C. provides in pertinent part:

Every person who, under color of any statute, or-

dinance, regulation, custom, or usage, of any

en ec wis iit

eS SH AT aM ae 6s I Nat tant watt LS aati Re

State ... subjects, or causes to be subjected, any

citizen of the United States or other persons

within the jurisdiction thereof to the deprivation

of any rights, privileges or immunities secured by

the Constitution and laws, shall be liable to the

person injured in an action of law, suit in equity,

or other proper proceedings for redress... .

STATEMENT OF THE CASE

Hernandez

Petitioner was a long time employee of respondent

Crawford Building Material. In 1999 Crawford dismissed

Hernandez from the position he then held at its ware-

house. Hernandez filed charges with the EEOC and Texas

Commission on Human Rights, alleging that he had been

dismissed because of his age, race and national origin.

When the Commissions were unable to resolve the matter,

Hernandez filed suit in federal district court, alleging

discrimination in violation of Title VII and the Age Dis-

crimination in Employment Act.

Within a month of the filing of that federal complaint,

Crawford filed a counterclaim which asserted that many

years earlier Hernandez had taken some property owned

by Crawford. The counterclaim did not merely seek dam-

ages for an alleged act of conversion, but accused Hernan-

dez of “theft of the grade of third degree or higher.”

Hernandez, in response, amended his complaint to allege

that the counterclaim itself had been filed to retaliate

against Hernandez for commencing the original federal

action. That retaliation, the amended complaint asserted,

violated section 704(a) of Title VII, section 4(d) of the

ADEA, and 42 U.S.C. § 1981.

* Under Texas law that felony carries a penalty of two to ten years

imprisonment. Texas Penal Code § 12.34.

Crawford’s counterclaim was dismissed on summary

judgment. The district court held that Crawford “cannot

show ... specifically, or even generally, what was stolen.

Next, Crawford cannot provide evidence that anything

allegedly missing was taken by Hernandez as opposed to

anyone else.” (App. 27a).

The case proceeded to trial on Hernandez’ retaliation

and dismissal claims. Crawford admitted that its theft

allegation had been triggered by Hernandez’ lawsuit. (App.

25a). Hernandez offered substantial evidence that the

filing of the counterclaim, particularly the public allega-

tion of serious criminal conduct, had caused him substan-

tial injury. The jury rejected Hernandez’ dismissal claim,

but concluded that Crawford had filed the counterclaim in

bad faith in retaliation for Hernandez’ commencement of

his federal action. The jury found that the counterclaim

had caused $20,000 in actual damages, and also awarded

$55,000 in punitive damages.

Following the jury verdict, Crawford moved for judg-

ment as a matter of law. In that post-trial motion Craw-

ford for the first time contended that the anti-retaliation

provision of Title VII does not forbid an employer from

filing a bad faith counterclaim as a method of retaliating

against a plaintiff for opposing unlawful discrimination.

Because Crawford had not objected to the jury instruction

on the retaliation claim, the verdict could. be overturned

only if the retaliation instruction was “plain error.” The

district court concluded that the instruction was not mes

error. (App. 14 n.1).

The court of appeals reversed. The appellate court

applied the Fifth Circuit’s longstanding narrow interpreta-

tion of the anti-retaliation provisions of Title VII, the

ADEA and section 1981. Under that interpretation,

retaliation is only unlawful if it takes the form of what the

Fifth Circuit characterizes as an “ultimate employment

decision.” Under Fifth Circuit precedent other forms of

retaliation are entirely lawful. The court of appeals

concluded that the retaliatory filing of a bad faith counter-

claim was not an “ultimate employment decision,” and

thus under Title VII, section 1981 and the ADEA was a

permissible method of retaliation. (App. 9a). The appellate

court also concluded that the legality of that form of

retaliation was so clear that the jury instruction in ques-

tion was indeed plain error. (App. 10a).

Banks/Malveau

Petitioner Malveau and thirteen other named plain-

tiffs in Banks seek review of that decision. The original

lead plaintiff, Dorothy Banks, was by agreement of the

parties dismissed from the case while it was pending in

the court of appeals.

As of 1992 the East Baton Rouge School Board em-

ployed janitors in three capacities: “Janitor I,” “J anitor IT,”

and “Janitor III.” The Janitor I employees were virtually

all women (App. 32a); they worked part-time for six hours

a day, nine months of the year. The Janitor II and Janitor

III employees were virtually all men;’ they were employed

for the entire year and worked eight hours a day. In 1992

the Board decided to further downgrade the status of the

virtually all female Janitor Is, reducing their work to four

hours a day, and eliminating their benefits. (App. 32a-

33a).

A number of the female Janitor I workers, including

all of the petitioners in this case, brought suit in 1993 in

Louisiana state court, alleging that these changes dis-

criminated on the basis of gender in violation of Louisiana

law. While that state court action was pending, the United

2 As of 1992 208 of the 234 Janitor II workers and all of the 33

Janitor III workers were men. Doc. #83, Exhibits 5 and 19.

States Department of Justice undertook an investigation

of whether the School Board had discriminated against

women, in violation of Title VII, by excluding them from

the Janitor II and Janitor III positions. In 1997 the De-

partment of Justice and the School Board entered into a

consent decree. Under that decree the Board created two

new full-time positions with benefits, “Janitor” and “Lead

Janitor.” Employees in the old Janitor I, II or III jobs could

remain in those classifications, but all future promotions

(or hiring) were into one of these new positions. Under the

Decree the School Board agreed to provide an opportunity

to be “promoted to the new [full-time] Janitor position” to

all “interested and qualified incumbent employees in the

[part-time] JanitorI... positions.” (App. 35a).

After agreeing to the Consent Decree, however, the

School Board allegedly took several steps that effectively

precluded the women in Janitor I from moving into the

new Janitor position. First, the Board required most of the

women in Janitor I positions to risk dismissal in order to

obtain the promotion to Janitor. The Board required

anyone seeking to promote from Janitor I to Janitor to

pass a reading examination. Of the women in Janitor I

who initially took the examination, only one passed. The

School Board advised the others that they would have to

give up their current jobs as Janitor I in order to be

eligible to take the test again. They could move temporar-

ily into the position of a probationary Janitor, but if they

failed the test a second time, they would be fired. (App.

35a-36a). Only one Janitor I opted to become a probation-

ary Janitor.

Second, if any of the women accepted the new Janitor

position on a probationary basis, they would have to begin

at the lowest pay level (the so-called “zero Step”) for

Janitors. This meant that any woman who obtained that

“promotion” would be subject to a severe reduction in her

hourly pay. For example, petitioner Rosa Malveau, who

made $10.90 as a Janitor I (Step 15), would have been

paid only $5.82 an hour if she promoted to the position of

ins Set

Janitor (Step 0). (App. 39a n.6). As a Janitor, Malveau

would have worked 40 hours a week, rather than only 20

hours a week as a Janitor I. But her resulting salary

would have risen from $218 a week only to $232 a week,

an increase of only $14 for working an additional 20 hours.

Unlike this pay rate reduction, the Board’s general promo-

tion policy was to place a promoted employee at whatever

pay Step would yield a rate 5% higher than his or her

prior hourly rate. (App. 39a n.6).

Malveau and fourteen other present or former Janitor

I female employees® brought the current action, alleging

that these two new rules were adopted to retaliate against

them for having filed the original 1993 state court action.

Such retaliation, their complaint alleged, violated section

704(a) of Title VII, and was a violation of the First

Amendment actionable under 42 U.S.C. § 1983. They

asserted, specifically, that a high ranking School Board

official had explained the Board’s action by commenting,

“That’s what you get for filing a lawsuit.” (App. 36a). The

petitioners who were still in the Janitor I position objected

to the test and the pass-or-be-fired rule. All of the petition-

ers, including several who ultimately had become Janitors,

attacked the salary reduction that was imposed under the

Board’s plan.

The district court dismissed both claims, holding that

the retaliatory practices alleged by the petitioners did not

violate Title VII. The court concluded that none of the

alleged retaliatory acts were “ultimate employment

decisions,” and thus none of them were forbidden by the

anti-retaliation provision of Title VII. (App. 71a-73a). In a

later ruling, the district court decided for similar reasons

that the School Board’s actions were not actionable under

section 1983. (App. 58a-60a).

* One of the original named plaintiffs, Dorothy Banks, was

subsequently dismissed as a plaintiff.

On appeal the Fifth Circuit reiterated that Circuit’s

longstanding position that section 704(a) forbids only

those retaliatory practices which constitute an “ultimate

employment decision.” (App. 38a). The panel concluded

that none of the retaliatory practices alleged by the Banks

petitioners constituted ultimate employment decisions.

(App. 39a-43a). The court of appeals concluded that a

similar limitation was applicable where a government

employee asserted that she had been retaliated against for

actions protected by the First Amendment. Such retalia-

tion was actionable, the court ruled, only if it constituted

an ultimate employment decision or took the form of a

reprimand or other disciplinary action. (App. 47a-49a).

Because neither condition was satisfied, the Fifth Circuit

concluded that petitioners’ section 1983 action also had to

be dismissed. (App. 49a).

REASONS FOR GRANTING THE WRIT

I. THERE IS A WIDELY RECOGNIZED CONFLICT

AMONG THE COURTS OF APPEALS REGARD-

ING WHETHER FEDERAL LAWS PROTECTING

EMPLOYEES FROM RETALIATION ACTUALLY

PERMIT RETALIATION SO LONG AS IT DOES

NOT TAKE THE FORM OF AN “ULTIMATE EM-

PLOYMENT DECISION” .

(1) This case concerns a well-established Fifth

Circuit limitation on the protections afforded by the anti-

retaliation provisions of federal law. Since 1995 the Fifth

Circuit has insisted that these anti-retaliation provisions

forbid only those acts of retaliation which constitute what

that circuit labels “ultimate employment decisions.” Dollis

v. Rubin, 77 F.3d 777, 782 (5th Cir. 1995). This is avowedly

a “strict interpretation” of federal anti-retaliation statutes.

(App. 9a). “Ultimate employment decisions” are limited to

acts “such as hiring, granting leave, discharging, promot-

ing and compensating.” 77 F.3d at 781-82. An employer

may retaliate against an individual for protected activity

eR eR eT

so long as the method of retaliation does not involve an

ultimate employment decision. As the panel in the instant

case observed, the Fifth Circuit since 1995 has identified a

wide variety of retaliatory practices which it deems legal.

(App. 8a n.2).

On the Fifth Circuit’s view, section 704(a) permits as

methods of retaliation practices which would be illegal

under section 706(a)(2) of Title VII if taken because of the

victim’s sex, race, or national origin. Mattern v. Eastman

Kodak Co., 104 F.3d 702, 708-09 (5th Cir.), cert. denied,

522 U.S. 932 (1997). Mattern, for example, held that

section 704(a) permits the use of harassment as a method

of retaliation, 104 F.3d at 707-709; see Mota v. University

of Tex. Houston Health Sci. Ctr., 261 F.3d 512, 521 (5th Cir.

2001) (retaliatory ostracism permitted). The court of

appeals in Mattern did not question the jury’s finding in

that case that the retaliatory harassment had caused the

plaintiff $50,000 in damages. Similarly severe or pervasive

harassment on the basis of gender or race, on the other

hand, is indisputably unlawful. Meritor Savings Bank v.

Vinson, 477 U.S. 57 (1986).

Other types of retaliatory practices which the Fifth

Circuit has held are not “ultimate employment decisions,”

and which in that circuit can lawfully be used to retaliate

against (or threaten) current or former employees, include

refusing to consider an employee for a promotion,’ denying

job training, deliberately changing a worker’s schedule so

that she has to give up a second job,” moving a worker

from the day to the night shift,’ giving the worker less

* Mattern, 104 F.3d at 707-08.

® Dollis, 77 F.3d at 779, 782.

’ Hunt v. Rapides Healthcare Syst., 277 F.3d 757, 769 (5th Cir.

2002).

responsible or desirable duties,’ placing the worker in

unlivable housing quarters, refusing to process grievances

filed by the employee’ and threats of dismissal or physical

injury.”

The two cases involved in this petition illustrate the

breadth of the exception which the Fifth Circuit has

created to federal anti-retaliation protections. In Hernan-

dez the Fifth Circuit did not question the jury’s finding

that the retaliatory counterclaim had caused $20,000 in

damage. But such a counterclaim was held to be a permis-

sible method of retaliation because it was “dissimilar” to

actions like demotions and dismissal. All of the retaliatory

practices that had previously been held to constitute

ultimate employment actions, the court noted, involved

actions against current workers. (App. 8a n.2). “A counter-

claim filed after the employee has already been discharged

in no way resembles ... ultimate employment decisions.”

(App. 9a).

The petitioners in Banks alleged retaliatory discrimi-

nation in the hourly wages they were offered if they

promoted into the Janitor position. That did not constitute

an ultimate employment decision, the court of appeals

reasoned, because it reduced their compensation in a job

they were seeking, not in the Janitor I position they

already held. “[TJhe Board’s implementation of the new

® Foley v. University of Houston Syst., 324 F.3d 310, 313, 317 (5th

Cir. 2003) (removal of plaintiff as chair of Education Division); Green v.

v. Texas Dept. of Criminal Justice, 220 F.3d 389, 394 n.2 (5th Cir. 2000);

Walker v. Thompson, 214 F.3d 615, 629 (5th Cir. 2000); Watts v. Kroger

Co., 170 F.3d 505, 511 (5th Cir. 1999).

* Thomas v. Texas Dept. of Criminal Justice, 220 F.3d 389, 395 n.2

(5th Cir. 2000).

" Mattern, 104 F.3d at 705.

Janitor position ... did not constitute an ultimate em-

ployment decision because it did not affect the Employees’

job duties, compensation, or level of benefits as Janitor I

employees.” (App. 41a-42a) (Emphasis added).”

The Board’s new reading requirement, particularly in

combination with the requirement that the Banks peti-

tioners risk dismissal to retake the test, had the undeni-

able effect of deterring virtually all of the petitioners from

continuing to seek promotion to Janitor. But even if that

was the very purpose of the allegedly retaliatory scheme,

it was entirely lawful.

[A] decision made by an employer that only lim-

its an employee’s opportunities for promotion ...

does not qualify as an adverse action under Title

VII. ... Even assuming that the Board told Em-

ployees they would lose their jobs if they ac-

cepted the probationary position but failed the

retest, the Board’s decision ... was, at most, a

mediate decision that could lead to an adverse

employment decision for an applicant who failed

that retest. Thus, the Board’s decision ... does

not qualify as an ultimate employment deci-

sion....

(App. 39a, 43a) (emphasis in original).

The Fifth Circuit’s ultimate employment decision

doctrine originated in Dollis and Mattern, both Title VII

cases. The petitioners in both Hernandez and Banks

asserted retaliation claims under section 704(a) of Title

VII. The Fifth Circuit has since extended that limitation to

claims under the Age Discrimination in Employment Act,

and thus dismissed the ADEA retaliation claims in

” “Regardless of whether the conditions placed on the new Janitor

position were unfavorable to employees seeking to be ‘promoted’ to it,

the Board’s implementation of this new position, with its new salary

structure ... did not constitute an ultimate employment decision under

Title VII.” (App. 40a).

Hernandez. (App. 6a n.1). The Fifth Circuit has also held

that the doctrine applies to claims under section 1981,”

and thus dismissed the section 1981 claim in. Hernandez.

In Banks the Fifth Circuit applied to section 1983 First

Amendment claims a slightly modified version of this rule.

Government workers retaliated against for activities

protected by the First Amendment cannot obtain relief

unless the retaliation either took the form of an ultimate

employment decision or constituted “a reprimand, disci-

plinary action, or transfer ‘equivalent to a demotion.’”

(App. 48a).™

(2) The panel in Hernandez candidly recognized that

the Fifth Circuit’s “ultimate employment decision” rule is

in conflict with the manner in which most circuits inter-

pret federal anti-retaliation laws. The majority conceded

that “‘oJur court has analyzed the “adverse employment

action” element [of a retaliation claim] in a stricter sense

than some other circuits.’” (App. 7a) (quoting Burger v.

Central Apartment Mgmt., 168 F3d 875, 878 (5th Cir.

1999)). The concurring judge similarly recognized:

A majority of the federal circuits that have con-

sidered the question have held that the protec-

tion afforded by the anti-retaliation provision [of

Title VII] extends to adverse employment actions

that, while substantial, fall short of ultimate em-

ployment decisions. .. . Indeed, the only other

circuit that purports to follow the “ultimate em-

ployment decision” rule, the Eighth Circuit, in

practice applies something broader.

(App. 10a-11a).

" Foley v. University of Houston System, 324 F.3d 310, 316-17 and

n.2 (5th Cir. 2003); Felton v. Polles, 315 F.3d 470, 486 (5th Cir. 2002).

“ The Fifth Circuit has also applied the doctrine to retaliation

claims under the Family and Medical Leave Act. Hunt v. Rapides

Healthcare Syst., 277 F.3d 757, 768-69 (5th Cir. 2001).

BE A ae; LW Hite eo aS

The, Fifth Circuit had earlier acknowledged the

existence of that conflict.

Our court has analyzed [section 704(a)] in a

7 stricter sense than some other circuits.... The

j Eleventh Circuit has recently discussed the cir-

cuit split surrounding the issue of whether Title

VII's protection against retaliatory discrimina-

: tion extends only to “ultimate employment deci-

sions.” ... We are not alone, but we are in the

minority.

Burger v. Central Apartment Mgmt., 168 F.3d 875, 878 and

n.3 (5th Cir. 1999).

The courts of appeals are split on this issue. The

Fifth and the Eighth Circuit have adopted the

“ultimate employment decision” standard....

{ Every other circuit to adciress the issue has held

7 that employment decisions falling short of ulti-

mate employment decisions may suffice.

Zaffuto v. City of Hammond, 308 F.3d 485, 492 (5th Cir.

2002).

_ The Ninth Circuit has correctly described the coznplex

nature of this inter-circuit conflict.

The circuits are currentiy split as to what

constitutes an adverse employment action [pro-

hibited by section 704(a)].... [Circuits that de-

fine adverse employment action brcadly are the

First, Seventh, Tenth, Eleventh and D.C. Cir-

cuits. An intermediate position is held by the

Second and Third Circuits. The most restrictive

view of adverse employment actions is held by

the Fifth and Eighth Circuits. ...

[T]he First, Seventh, Tenth, Eleventh and

D.C. Circuits ... all take an expansive view of

the type of actions that can be considered ad-

verse employment actions.... The Second and

Third Circuits hold an intermediate position

within the circuit split. They have held that an

adverse action is something that materially

affects the terms and conditions of employ-

ment.... The Fifth and Eighth Circuits, adopt-

ing the most restrictive test, hold that only

“ultimate employment actions” such as hiring,

firing, promoting and demoting constitute ac-

tionable adverse employment actions.

Ray v. Henderson, 217 F.3d 1234, 1241-42 (9th Cir. 2000).”°

In Ray the Ninth Circuit adopted yet a fourth distinct

position, urged by the EEOC, holding that section 704(a)

forbids any practice “reasonably likely to deter employees

from engaging in protected activity.” 217 F.3d at 1243.

The Eleventh Circuit has also recognized the dis-

agreement among the courts of appeals.

There is a circuit split on this issue. While the

Eighth Circuit has sided with the Fifth Circuit,

... the First, Ninth, and Tenth Circuits have all

held that Title VII's protection against retalia-

tory discrimination extends to adverse actions

which fall short of ultimate employment deci-

sions. ... We join the majority of circuits which

have addressed the issue and hold that Title

VII's protection against retaliatory discrimina-

tion extends to adverse actions which fall short of

ultimate employment decisions.

* See Vasquez v. County of Los Angeles, 307 F.3d 884 (9th Cir

2002) (footnotes omitted):

We have taken a broad view of adverse employment actions.

There are a wide array of disadvantageous changes in the

workplace that constitute adverse actions, including some

lateral transfers. As noted in Ray v. Henderson, we are in

accord with the First, Seventh, Tenth, Eleventh and D.C.

Circuits, which also take an expansive view of adverse em-

ployment actions, in holding that an action can be adverse

even if it is not an ultimate employment decision like termi-

nation. ...

Wideman v. Wal-Mart Stores, 141 F.3d 1453, 1456 (11th

Cir. 1998). The Eleventh Circuit reiterated in four subse-

| quent cases its rejection of the ultimate employment

doctrine.”

7 The Fourth Circuit has also acknowledged the prob-

lem, noting that even the position of the Eighth Circuit is

not as extreme as that of the Fifth. The Fourth Circuit

expressly rejected the rule in the Fifth Circuit.

[T]he majority of circuits have either implicitly or

explicitly rejected the “ultimate employment de-

cision” standard in § 2000e-3 cases. ... [While

the Eighth Circuit has ostensibly adopted the

“ultimate employment decision” standard, it has

consistently applied a broader standard... . [I]n

Mattern ... the Fifth Circuit expressly held in-

sufficient the kind of discriminatory changes in

the terms, conditions, and benefits of employ-

meat, which most other courts have recognized

could constitute adverse employment action un-

der § 2000e-3. ... But “ultimate employment de-

cision” is not the standard in this circuit....

[Wle have expressly rejected distinctions, like

those drawn by Mattern....

Von Gunten v. Maryland, 243 F.3d 858, 864-65 (4th Cir.

2001).

% Shannon v. Bellsouth Telecommunications, 292 F.3d 712, 716

(11th Cir. 2002) (“[aldverse employment action does not refer only to

ultimate employment decisions”); Bass v. Board of County Comm’rs, 256

F.3d 1095, 1118 (11th Cir. 2001); Gupta v. Florida Bd. of Regents, 212

F.3d 571, 587 (11th Cir. 2000); Graham v. State Farm Mutual Ins., 193

F.3d 1274, 1283 (11th Cir. 1999) (“The Eleventh Circuit recently joined

the First, Ninth, and Tenth Circuits in holding that Title VII's protec-

tion .. . extends to adverse actions which fall short of ultimate employ-

ment decisicns.... Thus, actions such as undeserved negative job

evaluations, demotions, disadvantageous transfer, or toleration of

harassment are actionable under the retaliation clause.”).

In addition to the Fourth, Ninth and Eleventh Cir-

cuits, which expressly noted the existence of this conflict

in rejecting the Fifth Circuit’s ultimate employment

doctrine, five other circuits have held that section 703(a)

forbids retaliatory practices that are deemed lawful by the

Fifth Circuit. In Wyatt v. City of Boston, 35 F.3d 13, 15-16

(1st Cir. 1994), the First Circuit held that section 703(a)

forbids not only ultimate employment actions, but also

“actions such as ... , disadvantageous transfers or as-

signments, ... unwarranted negative job evaluations and

toleration of harassment by other employees,” all practices

which are legal forms of retaliation in the Fifth Circuit.”

The First Circuit has repeatedly held that a significant

reduction in work responsibilities can constitute action-

able retaliation.” In Welsh v. Derwinski, 14 F.3d 85, 86 (1st

Cir. 1994), the First Circuit rejected a contention that the

anti-retaliation provision of the ADEA (also involved in

Hernandez) was limited to discharge, demotion or failure

to promote. “[MJany things, such as constant rudeness, . . .

could have an adverse effect.” That court of appeals has

found an asserted retaliatory act insufficient only where

the “[pJlaintiff ha{d] not alleged that he was damaged in

any way by the [employer’s] action.” Connell v. Bank of

Boston, 924 F.2d 1169, 1179 (1st Cir. 1991).

The Second Circuit requires only that the retaliatory

act cause “a materially adverse change” in the plaintiff’s

circumstances. Torres v. Pisano, 116 F.3d 625, 640 (2d

That same list of unlawful retaliatory practices short of ultimate

employment decisions is set out in Hernandez-Torres v. Intercontinental

Trading, 158 F.3d 43, 47 (1st Cir. 1998), Gu v. Boston Police Dept., 312

F.3d 6, 14 (1st Cir. 2002), Marrero v. Goya of Puerto Rico, 304 F.3d 7, 23

(1st Cir. 2002), and White v. New Hampshire Dept. of Corrections, 221

F.3d 254, 262 (1st Cir. 2000).

* Gu v. Boston Police Dept., 312 F.3d 6, 14 (1st Cir. 2002).

Cir.), cert. denied, 522 U.S. 997 (1997).” It agrees with the

majority of circuits that the retaliatory practices barred by

section 703(a) are

not confined “simply to instances of discrimina-

tion in pecuniary emolumen‘s”; diminution of du-

ties, motivated by discriminatory animus, may

also constitute an adverse employment action.

Garber v, New York City Police Dept., 1998 WL 514222 *2

(2d Cir., June 12, 1998). “We recognize that, as in retalia-

tion cases brought under Title VII, the ADEA does not

define adverse employment action solely in terms of job

termination or reduced wages, and that less flagrant

reprisals by employers may indeed be adverse.... [An]

employer can make [a] job undesirable without affecting

money or benefits.” Wanamaker v. Columbian Rope Co.,

108 F.3d 462, 466 (2d Cir. 1997). The Second Circuit has

joined with the Seventh and Tenth circuits in holding that

retaliatory harassment is forbidden, expressly rejecting

the Fifth Circuit’s holding to the contrary in Mattern.”

” The Sixth Circuit utilizes the same standard. White v. Burling-

ton Northern & Santa Fe Ry., 310 F.3d 443, 450-51 (6th Cir. 2002);

Hollins v. Atlantic Co., 188 F.3d 652, 662 (6th Cir. 1999).

® Richardson v. New York State Dept. of Correctional Serv., 180

F.3d 426, 445-46 (2d Cir. 1999):

Courts disagree about whether an employee suffers ‘adverse

employment action’ for the purposes of a retaliation claim

when, as Richardson alleges, her employer allows her co-

workers to harass her because she engaged in protected ac-

tivity. Compare Gunnell v. Utah Valley State College, 152

F.3d 1253, 1264 (10th Cir. 1998) ... , and Knox v. State of

Indiana, 93 F.3d 1327, 1334 (7th Cir. 1996), ... with ...

Mattern v. Eastman Kodak Co., ... We adopt the view that

unchecked retaliatory co-worker harassment, if sufficiently

severe, may ... satisfy the [requirements for a] retaliation

prima facie case.

The Second Circuit has also held that a retaliation claim can be

based on a showing that a plaintiff’s “job duties and responsibilities

(Continued on following page)

The Seventh Circuit has repeatedly held that a

retaliatory act is actionable so long as it causes significant

injury.

There is nothing in the law of retaliation that re-

stricts the type of retaliatory act that might be

visited upon an employee who seeks to invoke

her rights by filing a complaint. It need only be

an adverse-employment action. ... No one would

question the retaliatory effect of many actions

that put the complainant in a more unfriendly

working environment: actions like moving the

person from a spacious, brightly lit office to a

dingy closet, depriving the person of preciously

available support services ... OF cutting off chal-

lenging assignments. ... The law deliberately

does not take a “laundry list” approach to retalia-

tion, because unfortunately its forms are as var-

ied as the human imagination will permit.

Knox v. State of Indiana, 93 F.3d 1327, 1334 (7th Cir.

1996).” The Fifth Circuit, of course, has adopted just such

a laundry list approach.

were downgraded in retaliation, and his position was reduced to largely

clerical tasks,” even though no loss of income was involved. Preda v.

Nissho Iwai American Corp., 128 F.3d 789, 791 (2d Cir. 1997).

21 See Heuer v. Weil-McLain, 203 F.3d 1021, 1023 (7th Cir. 2000)

(“since the very purpose of the anti-retaliation provision is to prevent

Title VII claims from being deterred ... efforts to deter or prevent the

filing of a claim can be actionable even if they take forms other than

firing or demotion or other job action ... provided they are severe

enough to amount to adverse employment actions.”); Smart v. Ball

State Univ., 89 F.3d 437, 440 (7th Cir. 1996) (“[a]dverse employment

action has been defined quite broadly in this circuit.”); Collins v. State

of Illinois, 830 F2d 692, 702-03 (7th Cir. 1987) (“several courts have

found an adverse job action, for purposes of discrimination or retalia-

tion, in a lateral transfer even where the transfer did not result in a

reduction of pay or benefits. Title VII does not limit adverse job action

to strictly monetary considerations.”) (footnotes omitted).

The Tenth Circuit has also refused to limit the scope

of the anti-retaliation provisions to certain types of prac-

tices. “In recognition of the remedial nature of Title VII,

the law in this circuit liberally defines adverse employ-

ment action.” Jeffries v. State of Kansas, 147 F.3d 1220,

1232 (10th Cir. 1998). “[Wle have liberally interpreted the

phrase ‘adverse employment action.’” Gunnell v. Utah

Valley State College, 152 F.3d 1253, 1264 (10th Cir. 1998).

“It would be illogical to define a section 704(a) employee

liberally to include former employees and to simultane-

ously define an adverse employment action narrowly by

limiting it to those formal practices linked to an existing

employee/employer relationship.” Berry v. Stevinson

Chevrolet, 74 F.3d 980, 986 (10th Cir. 1996). The Tenth

Circuit has held that retaliatory co-worker harassment is

actionable under section 704(a), citing similar holdings in

the First and Seventh Circuits, and rejecting holdings to

the contrary in the Fourth, Fifth and Eighth Circuits.

Gunnell, 152 F.3d at 1264-65 (10th Cir. 1998).

Finally, the District of Columbia Circuit has held that

the ADEA “does not limit its reach only to acts of retalia-

tion that take the form of cognizable employment actions

such as discharge, transfer or demotion.” Passer v. Amert-

can Chemical Soc., 935 F.2d 322, 331 (D.C. Cir. 1991). As

under Title VII, the plaintiff need only show that “the

employer . . . engaged in conduct having an adverse impact

on the plaintiff.” Id.

As the Ninth Circuit observed in Ray, the inter-circuit

conflict is a complicated one. The Eighth Circuit has on

two occasions invoked the ultimate employment decision

standard. Ledergerber v. Stangler, 122 F.3d 1142, 1144

(8th Cir. 1997); Manning v. Metropolitan Life Ins., 127

F.3d 686, 692 (8th Cir. 1997). But those Eighth Circuit

decisions also use much broader language. E.g., Lederger-

ber, 122 F.3d at 1144 (“materially significant disadvan-

tage,” “materially altered the terms or conditions”);

Manning, 127 F.3d at 692 (“materially adverse employ-

ment action.”) The Eighth Circuit has held actionable

under section 704(a) a variety of practices that would not

constitute ultimate employment decisions in the Fifth

Circuit. Scusa v. Nestle U.S.A. Co., 181 F.3d 958, 969 (8th

Cir. 1999) (change in job title, reduction in duties, inter-

ference with employee’s ability to do her job); Manning v.

Metropolitan Life Ins., 127 F.3d at 692 (negative job

references); Smith v. St. Louis Univ., 109 F.3d 1261, 1266

(8th Cir. 1997); Kim v. Nash Finch Co., 123 F.3d 1046,

1060 (8th Cir. 1997) (reduction of job duties, lower per-

formance evaluations, requirement of remedial training).

Among the circuits expressly rejecting the ultimate

employment action rule, there are also clear differences.

The Second,” Sixth” and Eleventh” Circuits require that

the impact of an adverse action be “material.” The Tenth

Circuit, on the other hand, rejects that additional re-

quirement.” In the Ninth Circuit, the touchstone for

determining whether retaliation is actionable is whether

that action might deter protected activities. The Seventh

Circuit insists that that standard is too lax.”

* E.g., Richardson v. New York State Dept. of Correctional Serv.,

180 F.3d 426, 446 (2d Cir. 1999).

* FE.g., White v. Burlington Northern & Santa Fe Ry., 310 F.3d 443,

450 (6th Cir. 2002).

* F.g., Bass v. Board of County Comm'rs, 256 F.3d 1095, 1118 (11th

Cir. 2001).

* Jeffries v. State of Kansas, 147 F.3d 1220, 1232 (10th Cir. 1998)

(“The Tenth Circuit has never recognized a ‘materiality’ requirement

and we decline to do so here.”); Trujillo v. New Mexico Dept. of Correc-

tions, 1999 WL 194151 *3 (10th Cir., April 8, 1999) (same).

* Sweeney v. West, 149 F.3d 550, 556 (7th Cir. 1996).

Il. FEDERALAGENCIES IN BRIEFS FILED IN THE

COURTS OF APPEALS ARE ADVOCATING CON-

FLICTING INTERPRETATIONS OF THE LAW

The inter-circuit conflict regarding the scope of section

704(a) of Title VII and section 4(d) of the ADEA is the

result in part of a disagreement within the Executive

Branch. The Department of Justice, as counsel for federal

officials and agencies sued for retaliation, has repeatedly

urged the appellate courts to adopt or apply the Fifth

Circuit’s stringent ultimate employment decision require-

ment.” The EEOC, on the other hand, has long disagreed

with the Fifth Circuit’s rule, and has repeatedly filed

amicus briefs in other cases urging courts of appeals to

reject that rule.” In every instance in which the EEOC has

filed such a brief outside the Fifth Circuit, the court of

appeals has sustained the EEOC’s position.

The conflict between the legal position of the Civil

Division and that of the EEOC is not a mere oversight.

The differences in the positions advanced by the briefs of

those agencies is the result of an express and candid

disagreement between the two agencies involved. The

Solicitor General has not taken action to end the inconsis-

tency in the positions being advanced in the courts of

appeals by these vying federal agencies.

In Ray v. Henderson, for example, the Ninth Circuit

noted that “[tJhe government [as counsel for the defendant

Postal Service] urges us to... adopt the Fifth and Eighth

Circuit rule that only ‘ultimate employment actions’ such

as hiring, firing, promoting and demoting constitute

actionable adverse employment actions.” 217 F.3d at 1242.

E.g., Ray v. Henderson, 217 F.3d 1234, 1242 (9th Cir. 2000);

Welsh v. Derwinski, 14 F.3d 85, 86 (1st Cir. 1994); Appellee’s Brief,

Hassman v. Caldera, No. 00-1104 (4th Cir.), pp. 14-17.

* E.g., Von Guten v. Maryland, 243 F.3d 858, 861 (4th Cir. 2001);

Berry v. Stevinson Chevrolet, 74 F.3d 980, 982 (10th Cir. 1996).

The Ninth Circuit declined to do so, instead accepting the

EEOC’s interpretation of section 704(a). “Because the

EEOC standard is consistent with our prior case law and

effectuates the language and purpose of Title VII, we

adopt it.” 217 F.3d at 1243. In Arnold v. United States

Dept. of the Interior, 213 F.3d 193 (5th Cir. 2000), the Civil

Division argued that the retaliation alleged in that case

was lawful because “[t]his Court has held that a wide

array of negative employment events do not satisfy [the

ultimate employment decision] standard.”” In Welsh v.

Derwinski, 14 F.3d 85, 86 (1st Cir. 1994), the Department

of Justice unsuccessfully urged the First Circuit to limit

the anti-retaliation provision of the ADEA to discharge,

demotion, or failure to promote.

In Von Gunten v. Maryland, 243 F.3d 868 (4th Cir.

2001), on the other hand, the EEOC successfully urged the

Fourth Circuit to overturn a district court decision that

had utilized the ultimate employment action doctrine.

[T]he district court erroneously held that § 704

prohibits only “ultimate employment decisions” —

“hiring, granting leave, discharging, promoting

and compensating.” Section 704 contains no such

limitation. ... [C]ase law ... confirms that con-

duct short of an “ultimate employment decision”

is actionable under § 704.

We recognize that two circuits have adopted

an “ultimate employment decision” standard. ...

However, neither court attempts to explain how

allowing employers to take retaliatory measures,

short of an “ultimate employment decision,”

against employees who assert. their Title VII

rights would further the purposes of § 704. On

the contrary, it would stifle employees’ willing-

ness to complain of discrimination.

* Brief for the Appellee, No. 99-10753 (5th Cir.), p. 30.

Brief of the EEOC as Amicus Curiae In Support of Plain-

tiff, No. 00-1058, pp. 24-28.

In Wideman v. Wal-Mart Stores, 141 F.3d 1453 (11th

Cir. 1998), the Commission successfully opposed adoption

of the Fifth Circuit’s rule. .

The most natural reading of [section 704(a)] is

that it prohibits- any form of discrimination

against an individual for filing a charge. ... The

term “ultimate employment decision” nowhere

appears in Title VII....An employer who can re-

taliate with impunity by using methods that fall

short of an “ultimate employment decision” ...

will inevitably discourage employees from par-

ticipating in Title VII proceedings or opposing

unlawful practices.

Brief of the EEOC as Amicus Curiae, No. 97-2897, pp. 16-19.

The EEOC has unsuccessfully urged the Fifth Circuit

to abandon its stringent requirement:

The federal anti-discrimination laws prohibit re-

taliation for the filing of an EEOC charge even

when the retaliation does not involve any form of

employment action. This Court’s law to the con-

trary is wrong.... [T]he ultimate employment

decision doctrine finds no support in the statutes.

Brief of the EEOC as Amicus Curiae In Support of Roger

Bunch’s Petition for Initial Hearing En Banc, No. 99-11289

(5th Cir.), pp. 3, 7.

The EEOC Compliance Manual expressly rejects both

the Fifth Circuit’s “ultimate employment decision” doc-

trine and the requirement in the Second, Sixth and Elev-

enth Circuits that the retaliatory act cause a “material”

harm. The EEOC instead endorses the Ninth Circuit's

more liberal interpretation of the anti-retaliation provi-

sions.

Some courts have held that the retaliation

provisions apply only to retaliation that takes

the form of ultimate employment actions. Others

have construed the provisions more broadly, but

have required that the action materially affect

the terms, conditions, or privileges of employ-

ment.

The Commission disagrees with those deci-

sions and concludes that such constructions are

unduly restrictive. The statutory retaliation

clauses prohibit any adverse treatment that is

based on a retaliatory motive and is reasonably

likely to deter the charging party or others from

engaging in protected activity. Of course, petty

slights and trivial annoyances are not actionable,

as they are not likely to deter protected activity.

More significant retaliatory treatment, however,

can be challenged regardless of the level of harm.

As the Ninth Circuit has stated, the degree of

harm suffered by the individual “goes to the is-

sue of damages, not liability.”

This broad view of coverage accords with the

primary purpose of the anti-retaliation provi-

sions, which is to “[mJaintain[ ] unfettered access

to statutory remedial mechanisms.” Regardless

of the degree or quality of harm to the particular

complainant, retaliation harms the public inter-

est by deterring others from filing a charge. An

interpretation of Title VII that permits some

forms of retaliation to go unpunished would un-

dermine the effectiveness of the EEO statutes

and conflict with the language and purpose of the

anti-retaliation provisions.

EEOC Compliance Manual, ch. 8, pp. 13-15 (footnotes

omitted).

* http://www.eeoc.gov/docs/retal.html.

The EEOC has also objected to the requirement in the

Sixth Circuit that the retaliatory action must be one which

is “materially” adverse. In White v. Burlington Northern &

Santa Fe Ry. Co., 310 F.3d 443 (6th Cir. 2002), reh.

granted, 321 F.3d 1203 (6th Cir. 2003), the Sixth Circuit

concluded that the retaliatory practices in that case,

though unquestionably harmful, did not meet the “materi-

ally” requirement. The Commission filed a brief urging

rehearing en banc.

There is no language in the anti-retaliation pro-

vision of Title VII limiting its protection only to

retaliation in the form of “ultimate” or “materi-

ally adverse” employment action. ... [U]nder the

panel’s interpretation of Title VII, an employer

could openly use the threat of a retaliatory trans-

fer or temporary suspension, for example, to dis-

courage employees from filing a charge or

opposing discriminatory conduct. Interpreting Ti-

tle VII's anti-retaliation provision so as to permit

forms of retaliation that could effectively deter

individuals from engaging in what should be pro-

tected activity thus places the panel’s decision at

odds with the Supreme Court’s Robinson [v. Shell

Oil Co., 519 U.S. 337 (1997)] decision.

Brief of the EEOC as Amicus Curiae In Support of Plain-

tiff-Appellee’s Suggestion for Rehearing En Banc, Nos. 00-

6780 and 01-5024, pp. 3-7 (emphasis in original).

Similarly, the Commission has maintained that the

retaliatory action need not be an employment action at all.

In defendant’s view § 704(a) does not prohibit an

employer from taking reprisals against employ-

ees who file Title VII charges as long as the re-

taliatory acts cannot be labeled as employment

actions. This argument ignores the language of

§ 704(a) and, if accepted, would go a long way

toward vitiating the protection Congress in-

tended to afford to persons who assert claims

under Title VII.

Section 704(a) broadly prohibits any “dis-

crimination” against a covered individual “be-

cause he has made a charge” under Title VII.

This prohibition is not limited to any particular

actions nor is it confined to any particular form

of discrimination. ...

The harm caused by retaliatory acts directed

at individuals who file charges of discrimination

does not depend on the particular method of re-

taliation chosen by the employer.

Brief of the EEOC as Amicus Curiae, Berry v. Stevinson

Chevrolet, Nos. 93-1031, 1055, 1072, 1127 and 1354 (10th

Cir.), pp. 14-17.

The Justice Department’s litigation position regarding

these anti-retaliation provisions is at odds as well with the

Secretary of Labor’s interpretation of the anti-retaliation

provision of the Energy Reorganization Act of 1974. 42

U.S.C. § 5851(a). That provision forbids retaliation against

individuals for participating in proceedings under that Act

or the Atomic Energy Act of 1954. In Connecticut Light &

Power v. Secretary of Labor, 85 F.3d 89 (2d Cir. 1996), the

Secretary insisted that section 5851(a) protected a former

employee engaged in litigation with his ex-employer,

where the employer had insisted on a gag order as a

condition of settlement. The Second Circuit sustained the

Secretary's view that section 5851(a) applied to an em-

ployer’s post-employment litigation tactics.

CL & P argues that the challenged activity

did not discriminate against [the worker] with

respect to his terms of employment as required

by the statutory language, but rather arose from

[his] post-termination litigation.... This argu-

ment is specious.... As CL & P would have it,

once an employment conflict degenerates to the

point of formal litigation, the tactics employed by

the litigants would be protected from the legal

constraints imposed by the ERA. We dis-

agree. ...

In this case, CL & P sought to impose ...

improper conditions on the final terms of its em-

ployment relationship with [the worker]. The fact

that it did so under the cover of a litigation strat-

egy is irrelevant. Therefore, we hold that the

Secretary's interpretation is permissible. ...

85 F.3d at 95-96.

Ill. THE DECISIONS BELOW ARE IN CONFLICT

WITH THIS COURT’S DECISION IN ROBIN-

SON V. SHELL OIL CO., 519 U.S. 337 (1997)

The Fifth Circuit’s professedly “strict” interpretation

of section 704(a) and other anti-retaliation provisions is

inconsistent with this Court’s decision in Robinson v. Shell

Oil Co., 519 U.S. 337 (1997). Robinson held that the

general language of such statutes should be construed in

light of “a primary purpose of antiretaliation provisions:

maintaining unfettered access to statutory remedial

mechanisms.” 519 U.S. at 848. That purpose is assuredly

frustrated by the Fifth Circuit's ultimate employment

decision doctrine, which the Department of Justice has

correctly noted legalizes “a wide array of negative ...

actions.” (See p. 22, supra).

The EEOC has repeatedly maintained in the courts of

appeals that the “ultimate employment decision” is incon-

sistent with Robinson. In Von Gunten v. State of Maryland,

the Commission insisted that “Robinson cannot be recon-

ciled with [the ultimate employment decision doctrine]

since post-employment retaliation against a former em-

ployee would rarely, if ever, involve ‘hiring, granting leave,

discharging, promoting or compensating.” Brief of the

EEOC as Amicus Curiae In Support of Plaintiff, No. 06-

1058, pp. 24-28. In Gustafson, Inc. v. Bunch, 244 F.3d 144

(5th Cir. 2000), the Commission advanced the same

objection. The EEOC’s broader interpretation of the anti-

retaliation provisions, it insisted,

is the only one consistent with their fundamental

purpose: to “maintain[] unfettered access to

statutory remedial mechanisms.” Robinson uv.

Shell Oil Co., 519 U.S. 337, 346 (1997).

A[] Supreme Court case, ... issued after

Mattern, confirms that this Court erred in

restricting Title VII's anti-retaliation provision to

“ultimate employment decisions.” In Robinson v.

Shell Oil Co., 519 U.S. 337 (1997), the Court held

that Title VII protects former employees from re-

taliation. See id. at 346. Because an employer no

longer has an employment relationship with a

former employee, it is no longer in a position to

make any “ultimate employment decisions” re-

garding that individual. Indeed, in Robinson, the

alleged retaliation consisted of a negative em-

ployment reference. See id. at 337. A negative

reference, standing alone is much like a negative

performance evaluution. It is not, of itself, an

employment action.

Brief of the EEOC as Amicus Curiae In Support of Roger

Bunch’s Petition for Initial Hearing En Banc, No. 99-11289

(5th Cir.), pp. 4, 9-10.”

Even the Sixth Circuit's somewhat less stringent

standard, the Commission maintains, is in conflict with

Robinson.

The majority's holding that Title VII does

not prohibit employers from retaliating against

individuals as long as the form of retaliation falls

short of “materially adverse” or “ultimate” em-

ployment actions conflicts with ... the Supreme

| The Commission took the same position regarding Robinson in

its amicus brief in Wideman v. Wal-Mart Stores. Brief of the EEOC as

Amicus Curiae, No. 97-2897, pp. 17-20.

Court’s ... interpretation of the anti-retaliation

provision. ...

The [Sixth Circuit panel opinion in White v.

Burlington Northern & Santa Fe Ry. Co., 310

F.3d 443 (6th Cir. 2002)]. . . does not explain how

its decision can be reconciled with the purpose of

the anti-retaliation provision - namely, to

“‘mJaintain[] unfettered ac.ess to statutory re-

medial mechanisms.” Robinson, 519 U.S. at

346. ... The panel does not discuss its ruling in

light of the purpose of the anti-retaliation provi-

sion, and it is difficult to see how the panel’s de-

cision can be reconciled with that purpose, for its

ruling permits an employer “to retaliate with im-

punity” in “an entire class of acts.” Robinson, 519

U.S. at 346....

The panel’s decision ... also cannot be

squared with the precise holding of the Robinson

Court. In Robinson, the plaintiff sued his former

employer, alleging that it had retaliated against

him by giving’ a negative employment reference

to a potential employer. There was no allegation

that the former employer itself had made an ul-

timate employment decision. The Supreme Court

nevertheless allowed the plaintiff’s claim to pro-

ceed after holding that former employees may

challenge retaliatory actions.

Brief of the EEOC as Amicus Curiae In Support of Plain-

tiff’ Appellee’s Suggestion for Rehearing En Banc, Nos. 00-

6780 and 01-5024 (6th Cir.), pp. 3-7.

CONCLUSION

For the above reasons, a writ of certiorari should issue

to review the judgments and opinions of the Court of

Appeals for the Fifth Circuit.

Respectfully submitted,

TIMOTHY B. GARRIGAN

Stucky, GARRIGAN & CASTETTER

2803 North Street

P.O. Box 631902

Nacogdoches, TX 75963-1902

(936) 560-6020

NANCY PICARD

ROBEIN, URANN & LURYE

2540 Severn Avenue

Suite 400

Metairie, LA 70002

(504) 885-9994

ERIC SCHNAPPER*

UNIVERSITY OF WASHINGTON

SCHOOL OF LAW

1100 N.E. Campus Parkway

Seattle, WA 98105

(206) 616-3167

Counsel for Petitioners

*Counsel of Record

Revised February 28, 2003

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Summary Calendar

No. 01-41393

JUAN HERNANDEZ

Plaintiff-Appellee

CRAWFORD BUILDING MATERIAL COMPANY, doing

business as Crawford’s Discount Carpet and Home and

Floor Center

Defendant-Appellant

Appeal from the United States District Court

for the Eastern District of Texas

February 21, 2003

Before KING, Chief Judge, and SMITH and DENNIS,

Circuit Judges.

PER CURIAM:

Defendant-Appellant Crawford Building Material

Company (“Crawford”) appeals the final judgment entered

by the District Court for the Eastern District of Texas

ordering Crawford to pay Plaintiff-Appellee Juan Hernan-

dez $20,000 in compensatory damages and $55,000 in

punitive damages as a result of Hernandez’s claim that

Crawford initiated a retaliatory employment action in

violation of Title VII. Crawford attacks both the sufficiency

of the evidence presented to the jury and the ability of an

-employee to base a Title VII retaliation claim on the

employer’s filing of a counterclaim against that employee

after the employee has been discharged. We conclude that

the district court erred in denying Crawford’s motion for

judgment as a matter of law on the question of whether

the filing of a counterclaim could support an action for

employment retaliation. We therefore reverse the district

court and remand with instructions to dismiss the retalia-

tion claim.

I. FACTS AND PROCEDURAL BACKGROUND

Hernandez, a Mexican immigrant, began working as a

manual laborer at Crawford’s lumber yard around 1975.

At some point, management at Crawford became dissatis-

fied with Hernandez’s performance; he was transferred to

Crawford’s carpet warehouse, where he received a pay

raise concomitant with increased duties. Crawford contin-

ued to be unhappy with Hernandez, though, and on June

17, 1999, Crawford fired Hernandez after he miscut a roll

of carpet and failed to report the mistake. At that time,

Hernandez was sixty-one years old.

Hernandez filed a complaint with the Equal Employ-

ment Opportunity Commission (“EEOC”) and with the

Texas Commission on Human Rights. When neither

commission would provide him with the relief requested,

he sought and secured a “right-to-sue” letter from the

EEOC. On October 13, 2000, Hernandez filed suit against

Crawford, alleging that his termination violated the Age

Discrimination in Employment Act (“ADEA”), 42 U.S.C.

§ 1981, and Title VII.

At some point while Hernandez was pursuing this

suit, someone told one of Crawford’s owners that Hernan-

dez had been stealing company property while he was

employed at Crawford. The witness, Manual Guerra, was

a painter who had done business with Crawford. He

reported seeing building materials belonging to Crawford

stacked behind Hernandez’s house; he also reported that

Hernandez was selling that property. Hernandez allegedly

told Guerra that Crawford paid him with building materi-

als.

Crawford answered Hernandez’s complaint on No-

vember 3, 2000. In that answer, Crawford both denied the

allegations of discriminatory discharge and raised a

counterclaim for theft against Hernandez. In his answer to

Crawford’s counterclaim, Hernandez denied having ever

stolen building materials from Crawford. Then, on May 21,

2001, Hernandez supplemented his original complaint to

allege that Crawford’s counterclaim amounted to a retalia-

tory employment action in violation of Title VII, the

ADEA, and § 1981.

Hernandez moved for summary judgment on the

counterclaim. The district court granted that motion,

finding that Crawford could not prove specifically, or even

generally, what was stolen or that Hernandez stole it.

Most of the allegations of theft concerned items that had

gone missing six or seven years earlier; at that time,

Crawford had not investigated the problem. As a result,

Crawford now simply lacked sufficient evidence to demon-

strate to a jury that Hernandez had stolen Crawford's

property.

At trial, the jury instruction covering Hernandez’s

retaliation claim included the following statements:

4a :

The Plaintiff also brings causes of action for

retaliation, in violation of Title VII, the ADEA,

and § 1981. These laws prohibit an employer

from retaliating against a former employee for

filing a discrimination lawsuit. Here, Plaintiff

Hernandez contends that Defendant Crawfords

made allegations and the claim for theft to re-

taliate against Plaintiff for having brought this

lawsuit and pursuing his claims of discrimina-

tion against this Defendant.

To prevail on his retaliation claim, Plaintiff

Hernandez must show by a preponderance of

evidence his good faith opposition to discrimina-

tion and bringing this lawsuit was a substantial

or motivating factor for a decision by Defendant

Crawfords to make a theft allegation and coun-

terclaim.

The jury found, in two special interrogatories, that Craw-

ford had not discharged Hernandez because of his age or

because of his Mexican heritage. However, the jury did

find that Crawford’s filing of the counterclaim constituted

a retaliatory employment action. The jury awarded

$20,000 in compensatory damages (for Hernandez’s

claimed mental anguish and shame as a result of being

branded a thief) and $55,000 in punitive damages.

Crawford filed motions for a new trial and for judg-

ment as a matter of law. In his motion for a new trial, he

argued that there was insufficient evidence to support the

jury’s findings: (1) that Crawford had no permissible basis

for filing the theft counterclaim; (2) that Hernandez had

suffered actual damages as a result of the counterclaim;

and (3) that Crawford had acted in a manner sufficient to

warrant an award of punitive damages. In his motion for

judgment as a matter of law, Crawford argued that the

filing of a counterclaim was not the kind of “ultimate

employment decision” upon which a claim of retaliation

may be based and, alternatively, that Hernandez had not

proven that Crawford had a retaliatory motive in filing the

counterclaim.

The district court denied both motions. The court

found that Hernandez had presented sufficient evidence to

support the jury’s findings on the retaliation, causation,

and damages questions. As for the question of whether the

filing of a counterclaim could support a retaliation claim,

the district court found that, by failing to object to the jury

charge on the law of retaliation, Crawford had not pre-

served the issue for later challenge. As a result, the dis-

trict court reviewed the question only for plain error;

finding the issue debatable within the federal district

courts in Texas, the district court concluded that no plain

error had occurred.

Crawford timely appealed, raising two general classes

of appealable issues. First, Crawford reargues that the

filing of a counterclaim is not an “ultimate employment

decision” sufficient to support a claim of employer retalia-

tion. Second, Crawford asserts that there was insufficient

evidence to support the jury’s findings that: (1) Crawford

had a retaliatory motive in filing the counterclaim; (2) the

filing of the counterclaim caused any injury to Hernandez;

(3) Hernandez was entitled to damages based on his

mental anguish; (4) in the absence of actual damages,

punitive damages were proper; and (5) Crawford’s conduct

was sufficiently egregious to support an award of punitive

damages.

Il. FILING A COUNTERCLAIM AS AN “ULTIMATE

EMPLOYMENT DECISION” FOR PURPOSES OF

TITLE VII RETALIATION CLAIMS

Crawford contends that the jury impermissibly based

its verdict on a finding that the filing of a counterclaim

constituted a retaliatory action. Crawford argues that an

employer’s filing of a counterclaim cannot constitute the

“ultimate employment decision” necessary to support a

finding of retaliatory employment action under Title Vil

and the ADEA in the Fifth Circuit.’

The district court denied this ground, in part because

Crawford had failed to object to the jury charge on this

issue. Because Crawford failed to preserve the issue, it is

reviewed only for plain error. Hartsell v. Dr. Pepper Bot-

tling Co., 207 F.3d 269, 272 (5th Cir. 2000). To overturn a

verdict for plain error in the jury instructions, we must

find that the instructions made an obviously incorrect

statement of law that was “probably responsible for an

incorrect verdict, leading to substantial injustice.” Tomp-

kins v. Cyr, 202 F.3d 770, 784 (5th Cir. 2000).

Our precedents create a three-part test that a plaintiff

must satisfy in order to prove a retaliation claim: “(1) the

employee has engaged in activity protected by Title VII;

(2) the employer took adverse employment action against

the employee; and (3) a causal connection exists between

that protected activity and the adverse employment

1 This court has held that analysis of retaliation claims is the same

for ADEA claims as it is for Title VII claims. Sherrod v. Amer. Airlines,

Inc., 132 F.3d 1112, 1122 (5th Cir. 1998). Therefore, for purposes of this

. discussion, we will discuss only Hernandez’s Title VII claim.

action.” Burger v. Cent. Apartment Mgmt., Inc., 168 F.3d

875, 878 (5th Cir. 1999) (citing Mattern v. Eastman Kodak

Co., 104 F.3d 702, 707 (5th Cir. 1997)). “Our court has

analyzed the ‘adverse employment action’ element in a

stricter sense than some other circuits.” Id. at 878. In the

Fifth Circuit, only an “ultimate employment decision” by

an employer can form the basis for liability for retaliation

under Title VII. Mattern, 104 F.3d at 705.

We have said that typical examples of ultimate em-

ployment decisions that can support a claim of retaliation

include “hiring, granting leave, discharging, promoting,

and compensating.” Dollis v. Rubin, 77 F.3d 777, 781-82

(5th Cir. 1997). This understanding is grounded in the

statutory language of Title VII. While retaliation cases are

specifically covered by Section 2000e-3(a), we have looked

to Section 2000e-2(a)(1), which makes it unlawful “to fail

or refuse to hire or to discharge any individual, or other-

wise to discriminate against any individual with respect to

his compensation, terms, conditions, or privileges of

employment,” to determine which employment decisions

can support a retaliation cause of action. In Mattern, we

concluded that the kinds of “ultimate employment deci-

sions” that will support a finding of retaliatory conduct

must be similar to the kinds of conduct described in

Section 2000e-2(a)(1). Mattern, 104 F.3d at 709; id. at 707

(“Title VII was designed to address ultimate employment

decisions, not to address every decision made by employers

that arguably might have some tangential effect upon

those ultimate decisions.”) (quoting Dollis, 77 F.3d at 781-

82). A review of our prior Title VII jurisprudence confirms

that we have consistently refused to recognize retaliation

claims that are dissimilar to the prohibited activities of

§ 2000e-2(a)(1).” -

* Activities meeting the standard of “ultimate employment

decisions” include: Green v. Adm’rs of the Tulane Educ. Fund, 284 F.3d

642, 658 (5th Cir. 2002) (demotion); Fierros v. Tex. Dep’t of Health, 274

F.3d 187, 194 (5th Cir. 2001) (denial of pay increase); Mota v. Univ. of

Tex. Houston Health Sci. Ctr., 261 F.3d 512, 521 (5th Cir. 2000) (discon-

tinuation of employee’s stipend, denial of request for paid leave, denial

of request to extend unpaid leave, and termination); Evans v. City of

Houston, 246 F.3d 344, 353 (5th Cir. 2001) (demotion); Thomas v. Tex.

Dep't of Criminal Justice, 220 F.3d 389, 394 (5th Cir. 2000) (failure to

promote employee); Rubinstein v. Adm’rs of the Tulane Educ. Fund, 218

F.3d 392, 402 (5th Cir. 2000) (denial of pay raise); Vadie v. Miss. State

Univ., 218 F.3d 365, 374 (5th Cir. 2000) (refusal to consider employee

for another position after closing employee’s department); Shackelford

v. Deloitte & Touche, 190 F.3d 398, 407 (5th Cir. 1999) (termination);

Sharp v. City of Houston, 164 F.3d 923, 933 n.21 (5th Cir. 1999)

(constructive demotion).

Activities which are not “ultimate employment decisions” include:

Green, 284 F.3d at\657-58 (changing locks, restructuring office proce-

dures, clarifying job duties, and reprimands); Mota, 261 F.2d at 521

(removal of employee’s name from letterhead, ostracism by coworkers,

and loss of some job duties); Thomas, 220 F.3d at 389 n.2 (assignment to

less desirable shift and formal discipline); Walker v. Thompson, 214

F.3d 615, 629 (5th Cir. 2000) (removal from duties on particular

account, timing of short breaks during the day, and failure to receive

$2.89 allegedly owed for unplanned overtime); Watts v. Kroger Co., 170

F.3d 505, 511-12 (5th Cir. 1999) (change of work schedule and request

that employee perform new job tasks); Burger, 168 F.3d at 879 (denial

of transfer request to an identical position at a different job site); Webb

v. Cardiothoracic Surgery Assocs. of N. Tex., 139 F.3d 532, 540 (5th Cir.

1998) (rude treatment by employer); Messer v. Meno, 130 F.3d 130, 140

(5th Cir. 1997) (monitoring of employee’s conversations, criticism of

work and conduct, and refusal to consider employee’s input in business

decisions); Mattern, 104 F.3d at 708 (threats of potential dismissal,

verbal reprimands, and low evaluations that could lead to missed pay

increases).

District courts in other circuits have held that the

filing of a suit or counterclaim can support a lawsuit

premised on a theory of retaliatory employment action. See

Beckham v. Grand Affair of N.C., Inc., 671 F. Supp. 415,

419 (W.D.N.C. 1987) (finding retaliation where employer

instituted criminal prosecution of former employee who

filed claim with EEOC); EEOC uv. Va. Carolina Veneer

Corp., 495 F. Supp. 775 (W.D. Va. 1980) (finding retaliation

where employer filed defamation suit against employee

based upon statements made by employee to EEOC).

However, this circuit has taken a more skeptical view,

remarking that “[i]t is not obvious that counterclaims or

lawsuits filed against a Title VII plaintiff ought to be

cognizable as retaliatory conduct under Titie VII. After all,

companies and citizens have a constitutional right to file

lawsuits, tempered by the requirement that the suits have

an arguable basis.” Scrivener v. Socorro Indep. Sch. Dist.,

169 F.3d 969, 972 (5th Cir. 1999).

While there are no reported decisions from this circuit

dealing directly with this question,’ we think it is clear

that, given our strict interpretation of retaliation claims,

an employer’s filing of a counterclaim cannot support a

retaliation claim in the Fifth Circuit. A counterclaim filed

after the employee has already been discharged in no way

resembles the ultimate employment decisions described in

* There are two unreported Texas district court cases that have

considered this question as well; the courts reached different conclu-

sions. See Gustafson, Inc. v. Bunch, 1999 WL 304560 (N.D. Tex. 1999)

(filing of suit by employer after employee was discharged did not

constitute an “ultimate employment decision”); Shafer v. Dallas County

Hosp. Dist., 1997 WL 667933 (N.D. Tex. 1997) (filing of counterclaim

supports Title VII retaliation action).

10a

Section 2000e-2(a)(1). We find that the district court

committed plain error in instructing the jury that Craw-

ford’s counterclaim could support a finding of retaliatory

employment action. This instruction was an obvious

misstatement of the law that led to substantial injustice

for Crawford. This claim should not have gotten to the jury

in the first place.‘

IV. CONCLUSION

We REVERSE the district court’s decision denying

Crawford’s motion for judgment as a matter of law and

REMAND with instructions to dismiss Hernandez’s

retaliation claim. Costs shall be borne by Hernandez.

DENNIS, J., Circuit Judge, concurring:

I join fully in the per curiam opinion as a correct

disposition in accord with our precedents. I write sepa-

rately only to urge that the en banc court should recon-

sider our rule that “only an ‘ultimate employment decision’

by an employer can form the basis for liability for retalia-

tion under Title VII.” Opinion at 7 (citing Mattern v.

Eastman Kodak Co., 104 F.3d 702 (5th Cir. 1997)). This

rule is inimical to both the text and the purpose of the

anti-retaliation provision of Title VII, 42 U.S.C. § 2000e-

3(a). See Mattern, 104 F.3d at 710 (Dennis, J., dissenting).

A majority of the federal circuits that have considered the

* Because we find Hernandez’s retaliation claim uncognizable

under Fifth Circuit law, we do not need to discuss his claims that the

evidence presented at trial was insufficient to support the jury’s verdict.

lla

question have held that the protection afforded by the

anti-retaliation provision extends to adverse employment

actions that, while substantial, fall short of ultimate

employment decisions. See Von Gunten v. Maryland, 243

F.3d 858, 865 (4th Cir. 2001); Wideman v. Wal-Mart Stores,

Inc., 141 F.3d 1453, 1456 (11th Cir. 1998); Knox v. State of

Indiana, 93 F.3d 1827, 1334 (7th Cir. 1996); Berry v.

Sievinson Chevrolet, 74 F.3d 980, 984-86 (10th Cir. 1996);

Wyatt v. City of Poston, 35 F.3d 18, 15-16 (1st Cir. 1994);

Yarizoff v. Thome:s, 809 F.2d 1371, 1375 (9th Cir. 1987).

Indeed, the only other circuit that purports to follow the

“ultimate employment decision” rule, the Eighth Circuit,

in practice applies something broader. See e.g., Manning v.

Metro. Life Ins. Co., 127 F.3d 686, 692 (8th Cir. 1997)

(defining ultimate employment decision to include a

“tangible change in duties or working conditions that

constituted a material employment disadvantage”).

sl ae

12a

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

LUFKIN DIVISION

JUAN HERNANDEZ, §

Plaintiff §

i Civil Action No.

CRAWFORD BUILDING 5 9:00cv252

MATERIAL COMPANY, §

Defendants §

ORDER

Before the Court are Defendant’s Motion for New Trial

(Doc #41), Defendant’s Motion for Judgment as a Matter of

Law (Doc. #42), Memoranda in Support (Docs. #43 and

#44), and Plaintiff’s Responses (Docs. #46 and #47). This

case was tried to a jury on September 17, 2001 through

September 20, 2000 [sic]. The jury returned a verdict for

Plaintiff on his claim that Defendant retaliated against

him by claiming he committed theft. The jury subse-

quently awarded Plaintiff compensatory and punitive

damages in the amount of $20,000 and $55,000, respec-

tively. The Court entered a Final Judgment in accordance

with the jury’s findings on October 5, 2001. Defendant

claims that the evidence does not support the jury findings

in this case: (1) on the issue of retaliation; (2) actual

damages resulting from the alleged retaliation by Defen-

dant; and (3) punitive damages as found by the jury. Based

on the parties’ filings and the applicable law, the Court

rules as follows.

13a

I. Motion for Judgment as a Matter of Law

A. Sufficiency of the evidence

Rule 50(a) allows the court to take a case away from

the jury by entering judgment as a matter of law against a

party if there is no legally sufficient evidentiary basis for

a reasonable jury to find for that party on a particular

issue. FED. R. CIV. P. 50(a). Title VII makes it unlawful

for an employer to retaliate against an employee because

[that employee] has opposed any practice made an unlaw-

ful employment practice by this subchapter. 42 ¥.S.C.

§ 2000e-3(a). To prevail on a Title VII retaliation claim, a

plaintiff must successfully prove that: (1) the employee has

engaged in activity protected by Title VII; (2) the employer

took adverse action against the employee; and (3) a causal

connection exists between that protected activity and the

retaliatory action. Mattern v. Eastman Kodak Co., 104

F.3d 702, 705 (5th Cir. 1997). Former employees may bring

suit against former employers for post-employment actions

allegedly taken in retaiiation for seeking lawful vindica-

tion of their civil rights. Robinson v. Shell Oil Co., 519 U.S.

337, 346, 117 S. Ct. 843, 849, 136 L.Ed.2d 808 (1997). The

Fifth Circuit holds that the McDonnell Douglas burden-

shifting framework applies in Title VII retaliation cases.

See Rios v. Rossotti, 252 F.3d 375, 380 (5th Cir. 2001). As

the Supreme Court explained in Reeves v. Sanderson

Plumbing Products, Inc., 530 U.S. 133, 148, 120 S. Ct.

2097, 147 L.Ed.2d 105 (2000), a plaintiff must present

“sufficient evidence” for a jury to reasonably conclude that

the employer’s justification is unworthy of credence and is

a pretext for discrimination or retaliation. See Crawford v.

Formosa Plastics Corp., 234 F.3d 899, 902-03 (5th Cir.

2000).

l4a

Plaintiff had the burden of proving that the retalia-

tory counterclaim would not have been filed “but for” the

pursuit of his discrimination claims in court. Seaman v.

CSPH Inc., 179 F.3d 297 (5th Cir. 1999).’ A retaliatory act’s

proximity in time to, protected activity can lead to an .

inference that a causal connection exists. Evans v. City of

Houston, 246 F.3d 344, 345 (5th Cir. 2001); Shirley v.

Chrysler First. Inc., 970 F.2d 39 (5th Cir. 1992). Plaintiff

established that he was terminated on June 17, 1999, that

he filed a charge with the Texas Commission on Human

Rights on or about September 10, 1999, and that he

‘ Defendant maintains that a counterclaim does not constitute an

adverse employment action as required for a claim of retaliation in the

Fifth Circuit. However, the Court notes that Defendant, states that the

jury was properly charged. The Court instructed the jury that; “To

prevail on his retaliation claim, Plaintiff Hernandez must show by a

preponderance of the evidence his good faith opposition to discrimina-

tion and bringing this lawsuit was a substantial or motivating factor for

a decision by Defendant Crawford’s to make a theft allegation and

counterclaim.” Defendant failed to object to the charge at the time and

asserts it now for the first time. Since Defendant failed to preserve the

issue, the Court need only review it for plain error. See Hartsell v. Dr.

Pepper Bottling Co., 207 F.3d 269, 272 (5th Cir. 2000). Citing Scrivner v.

Socorro Indep. Sch. Dist., 169 F.3d 969 (5th Cir. 1999), Defendant looks

to the court’s language that it is not obvious to the court that counter-

claims filed against a Title VII plaintiff ought to be cognizable as

retaliatory conduct under Title VII. However, while not finding the

counterclaim in that case constituted retaliation, the court did not close

the door that a counterclaim could violate Title VII. The only reason the

counterclaim in Scrivner was not retaliation, according to the court,

was because it was filed, not by the employer, but by an employee in his

individual capacity, so that his conduct could not attributable [sic] to

the employer. Here, Crawfords, the employer, did file the counterclaim,

an important distinction. See also Shafer v. Dallas Co. Hosp. Dist., 1997

US. Dist. LEXIS 23451 (N.D. Tex. Oct. 22, 1997), (finding it “well-

established” that filing a retaliatory lawsuit or counterclaim may be

actionable under TITLE VII). The Court finds no plain error occurred.

15a

received his right to sue letter from the EEOC on or about

July 21, 2000. The parties stipulated that on or about

August 2, 2001 [sic], Plaintiff’s attorney wrote to Defen-

dant and advised them that Plaintiff Hernandez intended

to file a lawsuit. Defendant claims that the jury could not

possibly have found a causal connection between the

protected activity and the filing of the counterclaim

because the latter was not filed until November 3, 2000,

over a year after Plaintiff made his charge of illegal

employment discrimination. However, the statement by

Manuel Guerra, relied on by Defendant as the basis for its

counterclaim, was made August 2, 2000, within two weeks

after Plaintiff’s receipt of his right to sue letter and

during an investigation made by Defendant of the incident

in light of the noticed impending lawsuit. Plaintiff filed his

complaint on October 13, 2000, and a little over a month

later, Defendant filed the counterclaim. Plaintiff presented

sufficient evidence that a reasonable juror could infer that

Defendant's filing a counterclaim of theft against him was

causally connected and in retaliation for Plaintiff’s pro-

tected activities.

As the burden then shifted to Defendant to establish a

nondiscriminatory reason for filing the counterclaim,

Crawford asserted that it inadvertently discovered infor-

mation regarding the alleged theft during the course of the

litigation. At this juncture, Defendant insinuates that the

jury’s review of the evidence at trial became a question of

credibility of the witnesses, particularly Guerra’s testi-

mony relating to his statement, and argues that the jury is

not authorize. to draw conclusions in the absence of any

evidence. While it is well settled that “disbelief of a wit-

ness’s testimony is not sufficient to carry a plaintiff’s

burden,” Travelhost. Inc. v. Blandford, 68 F.3d 958, 965

16a

(5th Cir. 1995), the Court finds Plaintiff presented enough

evidence that the jury could infer discriminatory pretext in

filing the counterclaim. Other Crawford employees,

including Sam Medley and Sam Roberts, also testified that

they had “suspected” Plaintiff of stealing long before they

had the “proof’ supplied by the statement of Manuel

Guerra, yet further testified that they did not act on their

earlier suspicions by notifying the police or even confront-

ing the Plaintiff. The jury could reasonably infer from

their statements that Defendant treated their suspicions

as a nonissue until Plaintiff's filing of the lawsuit. The

owner, Joan Williams, testified that they would not have

brought the counterclaim had Plaintiff Hernandez not

brought his lawsuit, and continued that she had in fact

experienced a 25-year history of honesty and trust with

Plaintiff. Morecver, even Manuel Guerra testified on cross-

examination that he did not have any reason to believe

any of the materials in the possession of Plaintiff were

stolen. The Court finds that Plaintiff presented sufficient

evidence that would allow the jury to reasonably conclude

that Defendant’s proffered reason was false and a pretext

to retaliate against Hernandez. Accordingly, the evidence

supports a finding that “but for” Hernandez’s protected

activities, Defendant would not have filed a counterclaim

against him, and the findings of the jury stand.

B. Actual Damages

Defendant further challenges the award of actual

damages. Referring to the testimony regarding Plaintiff’s

sleeplessness, anxiety and worry following his termina-

tion, Defendant points out that none of the evidence

relating to Plaintiff’s mental anguish over his termination

is relevant to the retaliation claim. While mental, anguish

17a

requires a “high degree” of mental pain and distress “more

than mere worry, anxiety, vexation, embarrassment, or

anger,” [] recent Fifth Circuit cases have upheld a Title

VII retaliation award, in the very amount awarded to

Plaintiff, for mental anguish where the testimony con-

cerned “stress, sleeplessness, betrayal, and shame.” Oden

v. Oktibbeha County, Mississippi, 246 F.3d 458 (5th Cir.

2001), cert denied, Oden v. Oktibbeha County, Mississippi,

2001 WL 744067 (U.S. Oct. 09, 2001). See also Giles uv.

General Electric Co., 245 F.3d 474, 488 (5th Cir. 2001)

(finding that testimony of a plaintiff alone may be suffi-

cient to support an award of mental damages for sleep-

lessness, anxiety, stress, lost prestige, humiliation,

apparent despondence, depression, down, and discour-

aged). Likewise, though Defendant minimizes it, Hernan-

dez and his daughter both presented similar evidence

regarding the effects of the filing of the counterclaim;

namely, Hernandez’s continued worry, sleeplessness,

changed eating habits, depression and shame that contin-

ued until, and was evidenced during, his testimony at

trial, and his worry of what effect the theft allegation

might have on any future employment. Like Oden and

Giles, the Court concludes that Plaintiff’s evidence sup-

ports the award for mental anguish resulting from the

filing of Defendant’s retaliatory counterclaim.

C. Punitive Damages

Defendant further challenges the award of punitive

damages. While Defendant concedes that the jury's verdict

on punitive damages is not excessive in a numerical sense

or in proportion to the amount of actual damages found, it

claims that no punitive damages can be awarded in the

absence of actual damages. The Court having found that

18a

Plaintiff proved compensable mental anguish sufficient to

recover actual damages, Defendant next urges that there

is insufficient evidence upon which the jury could have

relied to justify an award of punitive damages.

; Defendant cites Transportation Ins. Co. v. Moriel, 879

S.W.2d 10 (Tex. 1996), a Texas case, for the proposition

that punitive damages are justified only when there is

evidence of “malicious, intentional, fraudulent, or grossly

negligent conduct.” Id. at 18. However, as Defendant

notes, Moriel is opposite in that it was predicated on a

finding of gross negligence rather than intentional con-

duct. Here, the jury was charged, and Defendant does not

contest the jury charge, that the jury was permitted to

award punitive damages if it found that Crawfords acted

with “malice or willfulness or with callous and reckless

indifference to the rights of others.” (Emphasis added).

Title VII provides for the imposition of punitive damages

in intentional discrimination cases is [sic] an employer

acts with malice or reckless indifference to an employee’s

protected right. Williams v. Treader Publishing Co., 218

F.3d 481, 487 (5th Cir. 2000). Moreover, the Supreme

Court and Fifth Circuit have rejected the theory that a

level of egregiousness if [sic] necessary in awarding

punitive damages under Title VII. See Kolstad v. American

Dental Assoc., 527 U.S. 526, 119 S. Ct. 2118 (1999); Def-

fenbaugh-Williams v. Wal-Mart Stores, Inc., 188 F.3d 278,

281-82 (5th Cir. 1999). Plaintiff presented evidence show-

ing the counterclaim was filed in unlawful retaliation for

the exercise of his statutory rights. The jury found the

filing of the counterclaim to be willful and intentionally

discriminatory, sufficient in this case to support the award

of punitive damages.

19a

II. Motion for New Trial

Pursuant to Rule 59, Defendant moves the Court for a

new trial for the same arguments made in its Motion for

Judgment as a Matter of Law. See FED. R. CIV. P. 59(a).

Under Rule 59, a district court enjoys considerable discre-

tion in granting or denying a motion for new trial. Laves-

pere v. Niagara Mach. & Tool Works. Inc., 910 F.2d 167,

173 (5th Cir. 1990). For the reasons set forth above, the

Court finds Defendant’s arguments to be unpersuasive.

Ill. Conclusion

The Court finds that Plaintiff presented sufficient

evidence that would allow the jury to reasonably conclude

that Defendant unlawfully retaliated against Plaintiff. In

addition, the Court finds Plaintiff presented sufficient

evidence of the effects of the unlawful retaliation to

reasonably support a jury award of actual damages in his

favor. Further, the Court finds that the Plaintiff proved

that the retaliation in the filing of the counterclaim was

willful and intentional sufficient to justify the jury’s award

of punitive damages. Accordingly, Defendant’s Motion for ~

Judgment on the Pleadings is hereby DENIED. Defen-

dant’s Motion for New Trial is likewise DENIED.

It is so ORDERED.

SIGNED this 27th day of October, 2001.

John Hannah, Jr.

United States District Judge

20a

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

LUFKIN DIVISION

JUAN HERNANDEZ, §

Plaintiff ;

Vv. §

§ CIVIL NO. 9:00-cv-252

CRAWFORD BUILDING

MATERIAL COMPANY, ;

Defendant §

ORDER

Before the Court are Plaintiff/Counter-Defendant

Juan Hernandez’ Motion for Partial Summary Judgment

(Doc. #19), Defendant/Counter-Plaintiff’s Response to

Plaintiff/Counter-Defendant Juan Hernandez’s Motion for

Partial Summary Judgment (Doc. #20), Affidavit (Doc.

#21), and Memorandum of Points and Authorities in

Support (Doc. #22), and Plaintiff/Counter-Defendant’s

Reply (Doc. #23). Based on the parties’ filings and the

applicable law, the Court rules as follows.

I. Background

Juan Hernandez (“Hernandez”), began working for

Crawford Building Materials Company (“Crawfords”), in

1975. His principle job was in the lumberyard, where he

loaded and unloaded trucks, stacked wood, and performed

other various jobs. During this time, Hernandez not only

worked at Crawfords’ place of business, but also worked on

company time at the home and ranch of its owners, per-

forming general maintenance work there. In the almost 25

2la

years that Hernandez worked for Crawfords, he made

little over minimum wage and supplemented his income

with overtime work.

In 1998, Crawfords transferred Hernandez to the

carpet warehouse, where he was in charge of carpet

cutting and security. Hernandez claims that employees of

Crawfords had openly discussed that Plaintiff was “too

old” to do the heavy work required in the lumberyard.

Crawfords alleges that Hernandez’s work was increasingly

unsatisfactory, and when Hernandez miscut a carpet

square, Crawfords fired him.

Hernandez filed suit against Crawfords, alleging age

as well as national origin discrimination, as Plaintiff is an

Hispanic born in Mexico.’ Crawfords denies any discrimi-

natory actions and maintains that Hernandez was fired

because his work became unsatisfactory over the years.

Crawfords, upon information received during discovery,

subsequently counterclaimed that Hernandez has taken

building materials, tools, equipment, and supplies from it

in violation of the Texas Penal Code and the Texas Theft

Liability Act, an allegation that Hernandez denies and

that forms the basis of this motion for summary judgment.

II. Summary Judgment Standard

A motion for summary judgment should be granted if

the record, taken as a whole, “together with the affidavits,

if any, show that there is no genuine issue as to any

’ Hernandez later amended his complaint to add a claim of

retaliation based on Crawfords’ filing a counterclaim for theft.

22a

material fact and that the moving party is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56; Celotex

Corp. v. Catrett, 477 U.S. 317, 323-25, 106 S. Ct. 2548, 91

L. Ed.2d 265 (1986); Ragas v. Tennessee Gas Pipeline Co.,

136 F.3d 455, 458 (5th Cir. 1998). The Supreme Court has

interpreted the plain language of Rule 56 as mandating

“the entry of summary judgment, after adequate time for

discovery and upon motion, against a party who fails to

make a showing sufficient to establish the existence of an

element essential to that party's case, on which that party

will bear the burden of proof at trial.” Celotex, 477 U.S. at

322, 106 S. Ct. at 2552.

The party moving for summary judgment, the movant,

“must ‘demonstrate the absence of a genuine issue of

material fact,’ but need not negate the elements of the

nonmovant’s case.” Little v. Liquid Air Corp., 37 F.3d 1069,

1075 (5th Cir. 1994) (en banc) (quoting Celotex, 477 US. at

323-25, 106 S. Ct. at 2553). “The movant accomplishes this

by informing the court of the basis for its motion, and by

identifying portions of the record which highlight the

absence of genuine factual issues.” Rizzo v. Children’s Worl

[sic] Learning Ctrs., Inc., 84 F.3d 758, 762 (5th Cir. 1996)

(citing Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir.

1992)). If the moving party “fails to meet this initial

burden, the motion must be denied, regardless of the

nonmovant’s response.” Little, 37 F.3d at 1075.

If the movant meets this burden, Rule 56 requires the

opposing party to go beyond the pleadings and to show by

affidavits, depositions, answers to interrogatories, admis-

sions on file, or other admissible evidence that specific

facts exist over which there is a genuine issue for trial.

EEOC v. Texas Instruments, Inc., 100 F.3d 1173, 1180 (5th

Cir. 1996); Wallace v. Texas Tech. Univ., 80 F.3d 1042,

23a

1046-47 (5th Cir. 1996). The nonmovant’s burden may not

be satisfied by argument, conclusory allegations, unsub-

stantiated assertions, metaphysical doubt as to the facts,

or a mere scintilla of evidence. Matsushita Elec. Indus. Co.

v. Zenith Radio, 475 U.S. 574, 585, 106 S. Ct. 1348, 89

L.Ed.2d 538 (1986); Wallace, 80 F.3d at 1047; Little, 37

F.3d at 1075.

When ruling on a motion for summary judgment, the

court is required to view all inferences drawn from the

factual record in the light most favorable to the nonmoving

party. Matsushita, 475 U.S. at 587, 106 S. Ct. 1348; Ragas,

136 F.3d at 458. However, factual controversies are to be

resolved in favor of the opposing party “only when there is

an actual controversy, that is, when both parties have

submitted evidence of contradictory facts.” Wallace, 80

F.3d at 1047; accord, S.W.S. Erectors, Inc. v. Infax, Inc., 72

F.3d 489, 494 (5th Cir. 1996). The court will not, “in the

absence of any proof, assume that the nonmoving party

could or would prove the necessary facts.” McCallum

Highlands, Ltd. v. Washington Capital Dus, Inc., 66 F.3d

89, 92 (5th Cir.), as modified, 70 F.3d 26 (5th Cir. 1995).

The party opposing summary judgment is required to

identify specific evidence in the record and to articulate

the precise manner in which that evidence supports its

claim. Ragas, 186 F.3d at 458. Unless there is sufficient

evidence for a reasonable jury to return a verdict in the

opposing party’s favor, there is no genuine issue for trial,

and summary judgment must be granted. Celotex, 477 ©

U.S. at 322-23, 106 S.Ct. at 2548; Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 249-51, 106 S. Ct. 2505, 2511, 91

L. Ed.2d 202 (1986); Texas Instruments, 100 F.3d at 1179.

However, if the opposing party sets forth specific facts

essential to their claims, a genuine issue of material fact

24a

will then preclude summary judgment. Coleman v. Hous-

ton Indep. School Dist., 113 F.3d 528, 533 (5th Cir. 1997).

III. Discussion

Crawfords alleges that Hernandez stole building

materials, tocis, equipment, and supplies in violation of

section 31.03 of the Texas Penal Code. Under the statute,

“(a) A person commits an offense if he unlawfully appro-

priates property with intent to deprive the owner of

property; (b) Appropriation of property is unlawful if (1) it

is without the owner’s consent.” V.T.C.A., PENAL CODE

§ 31.03. If this statute is violated, a party harmed by its

violation may seek recovery for resulting damages under

the Texas Theft Liability Act. TEx. Civ. Prac. & REM.

CopDE § 134.005(a)(1). The elements of offense of theft

under section 31.03 are: (1) a person, (2) with intent to

deprive owner of property, (3) unlawfully appropriates that

property, (4) without effective consent of owner. Washing-

ton v. State, 909 S.W.2d 577 (Tex. App. 1995). In cases

alleging the theft of property by an employee, as alleged in

this case, theft may be established by showing that the

employee did not have authority to dispose of or appropri-

ate property in the manner alleged; thus theft is estab-

lished by showing that the employee acted in some way

inconsistent with his lawful authority. Huff v. State, 897

S.W.2d 829, 834 (Tex. App. 1995). Further, it has been held

that evidence that an accused exercised control over

property without consent of the owner, intending to

deprive him of it, or evidence of accused’s unexplained

possession of recently stolen property, is sufficient to prove

theft. Jackson v. State, 12 S.W.3d 836 (Tex. App. 2000). To

prevail on its claims of theft, Crawfords will have to show

that Hernandez, in fact, appropriated or exercised control

25a

over Crawfords’ recently stolen property without its

consent.

Hernandez, as the party moving for summary judg-

ment on the counterclaim, has the burden of showing

there is no genuine issue as to any material fact, and-that—

he is entitled to judgment as a matter of law. To demon-

strate the absence of a genuine issue, Hernandez points to

the depositicn testimony of three witnesses that Craw-

fords produced in response to a notice of deposition: Joan

Williams, Sam Medley, and Sam Roberts. Joan Williams,

the primary owner of Crawfords, admits in her deposition

testimony that Hernandez never stole from her personally,

that she couldn’t point to anything specific that was

missing from Crawfords, nor did she have any reason to

think Hernandez was stealing from Crawfords, that

criminal charges were never sought against Hernandez,

and that if Hernandez had not filed the discrimination

lawsuit against Crawfords, she didn’t believe Crawfords

would have accused Hernandez of theft. “We would have

just let it go.” (Williams depo. p. 41, In. 20). Hernandez

also directs the Court to the deposition of Sam Medley, the

manager and twenty-five percent owner of Crawfords, who

also stated that he could not point to any specific thing

that Hernandez stole from Crawfords, nor to anything in

general. According to his testimony, if there was evidence

that Hernandez was stealing, he would probably be aware

of it. Last, Hernanuez shows the Defendant’s lack of

evidence to prove him guilty of theft by way of deposition

of Sam Roberts, manager of Crawfords’ carpet store.

According to Roberts, his weed eater, a pipe wrench,

garden tools, and a shovel were missing from the ware-

house at the time when Hernandez was supposed to be in

charge of security. However, Roberts testified that, even

26a

though he suspected him, he never had nor was he now

accusing Hernandez of stealing those things and, more-

over, would not approach Hernandez about it without any

proof. Hernandez, by the deposition testimony of these

three employees, shows that Crawfords has not been able

to and cannot support the elements needed for its counter-

claim of theft.

Even though the burden then shifts to Crawfords to

show that specific facts exist over which there is a genuine

issue for trial, Crawfords never mentions in its response

the deposition testimony of Joan Williams or Sam Roberts.

Crawfords dees include an affidavit by Sam Medley that

stated that he had no specific or “hard” evidence that any

tools had been stolen or taken from the premises by

Hernandez, that he had not made any investigation into

any missing items, and had never made any accusations of

theft to Hernandez. His affidavit only stated a belief that

it was “probable” that Hernandez had committed theft.

In Huff, an employee was found to have unlawfully

appropriated from her employer when it was found that

she (1) wrote checks from her employers account and

deposited them to her own account, and/or (2) paid bills

with company checks or from money obtained from petty

case [sic] without approval. Huff, 87 S.W.2d at 833. There,

the company noticed that its property was missing, the

company investigated, and the company traced the stolen

property to its employee. Id.

Similarly, stolen property was identified, traced, and

recovered in Jackson. Jackson is the reverse of the facts of

this case in that Jackson had never been at the scene of

the theft but was identified at three separate businesses

as the possessor and seller of the alleged stolen materials.

27a

Jackson, 12 S.W.3d at 840. There, a storage facility on

company grounds was broken into and heavy aluminum

molds weighing from 100 to 200 pounds were taken. Jd.

The company reported the theft to the police and faxed a

reward poster to recycling facilities. Jd. Within two days,

the company identified the sold goods as their stolen molds

and retrieved them. Jd. at 838. The officer in charge of the

investigation discovered who had sold the molds because

the recycling facilities routinely make photocopies of the

seller’s identification when the metal being sold is valued

over $25.00. Id. at 841. Though no witnesses could place

Jackson, the seller in possession of the stolen goods, at the

company, and the only evidence to convict him consisted of

his recent and unexplained possession and sale of the

items taken, the court concluded that a reasonable jury

could have drawn the inference of Jackson’s guilt. Id. at

841-42. The court held that if a defendant is in fact found

in possession of recently stolen property, the fact finder

may draw an inference that defendant is guilty of theft. Id.

Here, Crawford fails in its burden, because it cannot

show first, specifically, or even generally, what was stolen.

Next, Crawford cannot provide evidence that anything

allegedly missing was taken by Hernandez as opposed to

anyone else. Uniike Huff and Jackson, accusations were

never made, an investigation was never pursued, and

Crawfords has never introduced any proof that materials

allegedly missing are in the possessicn of Hernandez, or

that any building materials in the possession of Hernan-

dez are items that belong to Crawfords.

The only disputable proof that Crawfords has in

support of its claim is the statement and deposition of a

customer, Manual Guerra, that he had bought a ladder

and two shovels from Hernandez six or seven years earlier

rr a

28a

and that at that time Hernandez had allegedly admitted to

Guerra that the items came from Crawfords. In Guerra’s

deposition, he stated that he saw tools and building

materials at Hernandez’s house at the same time of his

purchase. Though it had no “hard evidence,” Crawfords

submits the affidavit of Sam Medley, admitting it relied on

this statement by Guerra as the basis for its claim of theft

against Hernandez. Hernandez denies that he stole

materials or sold them to Guerra, and Crawfords has not

investigated nor identified the materials to know whether

they were stolen or even belonged to Crawfords.

Moreover, even if Guerra’s allegations seem to create a

genuine issue for trial, his statement and deposition do not

qualify as admissible evidence. Section 31.03(c) governs

the admissibility of extraneous offenses in a theft case and

requires a “recent” transaction to show the required intent

of the offender. V.T.C.A., PENAL CODE § 31.03(c). “For

purposes of Subsection (b): (1) evidence that the actor has

previously participated in recent transactions other than,

but similar to, that which the prosecution is based is

admissible for the purpose of showing knowledge or

intent....” Id. (emphasis added). In Ballard v. State, 945

S W.2d 902 (Tex. App. 1997), the court held that a six-year

time span between the charged theft and a similar extra-

neous offense did not meet the “recent” transaction re-

quirement for admission of evidence. Id. at 905. Similarly,

there exists a six or seven year time span between the

claimed theft here and the alleged incident involving

Guerra. Crawfords makes the assumption, without provid-

ing the necessary proof, that the tools and materials

allegedly seen by Guerra seven years earlier were tools and

materials stolen from Crawfords — years before Hernandez

transferred to the warehouse and Crawfords complained of

29a

missing items, and years before the counterclaim of theft

filed here.

IV. Conclusion

Crawfords has failed to produce evidence from which a

rational fact finder could conclude that Hernandez in fact

stole from Crawfords or was in possession of its recently

stolen property. Consequently, Plaintiff/Counter-Defendant’s

Motion for Partial Summary Judgment is GRANTED in all

respects.

IT IS SO ORDERED.

SIGNED this 9th day of August, 2001.

United States District Judge

John Hannah, dr.

30a

DOROTHY BANKS; ET AL, Plaintiffs, TINA

BROOKS; SHIRLEY BROWN; ANNETTE J GRAY;

MARY HOLMES; ANNIE JOHNSON; AMY LANE;

ROSA MALVEAU; DOROTHY MCPIPE; ALMA

NEWMAN; MAGGIE TUCKER; BERTHA TWINE;

BERTHELLA WALLACE; EDNA WELCH; MARY

WILLIAMS; NELLIE WILLIAMS, Plaintiffs-

Appellants, versus EAST BATON ROUGE PARISH

SCHOOL BOARD; INGRID KELLEY; WARREN L

PRATT, JR; PRESS L ROBINSON, SR, DR;

JACQUELINE MIMS; PATRICIA HAYNE-SMITH;

NOEL HAMMATT; ROGER MOSER; DANIEL R

HENDERSON; ELDON R LEDOUX; DALTON

DEVALL; WILLIAM P BLACK; JAMES MANLEY,

Defendants-Appellees.

No. 01-30090

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

320 F.3d 570; 2003 U.S. App. LEXIS 2972; 91 Fair

Empl. Prac. Cas. (BNA) 280

February 19, 2003, Decided

PRIOR HISTORY:

Appeal from United States District Court for the Middle

District of Louisiana. 98-CV-974-A. John V Parker, US

District Judge.

DISPOSITION:

Affirmed.

COUNSEL:

For TINA BROOKS, SHIRLEY BROWN, ANNETTE J

GRAY, MARY HOLMES, ANNIE JOHNSON, AMY LANE,

ROSA MALVEAU, DOROTHY MCPIPE, ALMA NEWMAN,

MAGGIE TUCKER, BERTHA TWINE, BERTHELLA

WALLACE, EDNA WELCH, MARY WILLIAMS, NELLIE

3la

WILLIAMS, Plaintiffs - Appellants: Nancy Picard, Robein,

Urann & Lurye, Metairie, LA.

For EAST BATON ROUGE PARISH SCHOOL BOARD,

INGRID KELLEY, WARREN L PRATT, JR, DR PRESS L

ROBINSON, SR, JACQUELINE MIMS, PATRICIA

HAYNE-SMITH, NOEL HAMMATT, ROGER MOSER,

DANIEL R HENDERSON, ELDON R LEDOUX, DALTON

DEVALL, WILLIAM P BLACK, JAMES MANLEY, Defen-

dants - Appellees: Kenneth F Sills, Karen Denise Murphy,

Hammonds & Sills, Baton Rouge, LA.

JUDGES:

Before EMILIO M. GARZA and CLEMENT, Circuit

Judges, and DAVIS*, District Judge.

OPINION BY:

EMILIO M. GARZA

OPINION:

Before EMILIO M. GARZA, Circuit Judge:

Fifteen female plaintiffs (collectively, “Employees”)

formerly or currently employed as janitors by the East

Baton Rouge Parish School Board appeal the district

court’s decisions granting summary judgment in favor of

the Board, its individuals members, and James Manley,

the Personnel Supervisor for the Board’s Maintenance

Department (collectively, the “Board”). In granting sum-

mary judgment, the district court dismissed Employees’

Title VII retaliation and disparate impact discrimination

claims, as well as their § 1983 retaliation claim, against

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

designation.

32a

the Board. Employees argue that the district court erred

in concluding that Employees failed to make a prima facie

showing of an adverse employment action under either

Title VII or § 1983. According to Employees, the Board’s

implementation of a reading requirement and new salary

structure for a new Janitor position, which was created

pursuant to a consent decree entered into with the U.S.

Department of Justice (the “DOJ”), thwarted Employees’

immediate “promotion.” This action, according to Employ-

ees, kept them from reaching their appropriate pay level

and step and was, therefore, an adverse employment

action under both Title VII and § 1983. Employees also

argue that the district court erred in concluding that

Employees failed to make a prima facie showing under

Title VII that the reading requirement, implemented by

the Board, selected applicants for the new Janitor position

in a discriminatory pattern resulting in a sex-based

imbalance in the Board’s workforce.

We begin with a brief summary of the unique facts of

this case. The Board employed janitors in three capacities:

“Janitor I,” “Janiter II,”-and “Janitor Ill.” Janitor I em-

ployees, all of whom were female, worked part-time for six

hours a day, nine months of the year. They were responsi-

ble for performing the most basic janitorial tasks. The

Janitor II employees, most of whom were male, worked

eight hours a day for the entire year. They were responsi-

ble for performing tasks essentially the same as those

performed by Janitor I employees, with the addition of

some duties, such as lawn care. Janitor III employees, all

of whom were male, worked full-time and were responsible

for performing tasks essentially the same as those

33a

performed by Janitor I and Janitor II employees, with the

addition of some supervisory tasks, such as locking up

buildings and supervising cleaning crews.

The Employees, all of whom are female, were Janitor I

employees. After the Board decided to eliminate the

medical benefits received by Janitor I employees and to

reduce their working hours (from six hours per day to four

hours per day), a number of Janitor I employees, including

Employees, sued the Board in state court, alleging that the

Board’s action had a disparate impact on female employ-

ees in violation of Louisiana state law, since all Janitor I

employees were female. Their suit also alleged intentional

sex discrimination in violation of Louisiana state law.

While the state court lawsuit was still pending,’ the

DOJ began an inquiry into the Board’s procedures for

placing women into the Janitor II and Janitor III posi-

tions. The impetus for the DOJ investigation was the

allegation that the Board discriminated against women on

the basis of their gender in violation of Title VII by reserv-

ing the Janitor II and Janitor III positions for males only.

Subsequently, the Board began to evaluate all school

system positions, including job descriptions and salary

schedules, for the stated purpose of eliminating the ineffi-

cient use of resources. All janitor and custodian classifica-

tions were included in this study. The Board decided to

phase out the three-tiered janitor position and replace it

with two new positions: “Janitor” and “Lead Janitor.” The

Janitor position (the “new Janitor position”) combined the

‘ The state court ultimately dismissed the plaintiffs’ lawsuit with

prejudice. The plaintiffs chose not to appeal the state court judgment.

34a

duties of the Janitor I and Janitor II positions. The “Lead

Janitor” position was intended to be the equivalent of the

Janitor III position. Both the new Janitor position and the

Lead Janitor position were full-time positions, with

medical benefits. However, the Board created a new pay

scale, which resulted in lower hourly pay for any Janitor I

employee who accepted the new Janitor position. Addi-

tionally, the Board implemented a testing procedure to

select applicants for the new Janitor position. Applicants

were required to take and pass a “practical” test involving

the use of maintenance equipment, as well as a reading

test, which tested an applicant's ability to read at an

eighth-grade level. Applicants for the Lead Janitor posi-

tion were not required to take either of these two tests.

The Board’s implementation of the reading test for the

new Janitor position was, according to the Board, ‘its

response to an incident in which at least one Board em-

ployee was sickened as a result of a custodian’s failure to

follow printed instructions on the use of a pesticide. The

Board maintains that safety concerns demanded its new

Janitors be able to read at an eighth-grade level, since the

safety guidelines of the Occupational Safety and Health

Administration were written on an eighth-grade level, as

were most Material Safety Data Sheets, which are re-

quired for all chemicals used in the workplace.

The Board subsequently entered into a consent decree

(the “Consent Decree”) with the DOJ, which incorporated

the Board’s plan for the new Janitor position and Lead

Janitor position, as well as its plan for a new salary

structure. The purpose of the Consent Decree was to

resolve all issues raised by the DOJ in a separate lawsuit

that the DOJ, after its lengthy investigation of the Board,

brought against the Board under Title VII, alleging

35a

discrimination against females in the hiring and promo-

tion of janitors. See United States v. East Baton Rouge

Parish Sch. Bd., No. 97-264-A-3. The Consent Decree

provided that “interested and qualified incumbent employ-

ees in the Janitor I ... positions [would] be provided ...

an opportunity to be promoted to the new Janitor posi-

tion.” It made no mention of the reading requirement,

though it did state that “[a]pplicants selected for possible

employment as Janitors or Lead Janitors may be required

by the School Board to pass additional lawful and job-

related selection devices or requirements.”

Thereafter, when Employees (except those who chose

not to do so) applied for the new Janitor position, they took

the “practical” test and the reading test.” Though all

passed the “practical” test, only one passed the reading

test.? Unlike the day-by-day substitutes and applicants off

the street who were later given an opportunity to apply for

the new Janitor position, Janitor I employees who failed

the reading test were given the option of either remaining

in their old Janitor I jobs or taking the new Janitor posi-

tion on a probationary basis, regardless of their current

reading ability.‘ Attendance at adult reading classes was a

? Plaintiffs Dorothy Banks, Amy Lane, and Bertha Twine, who

elected not to proceed with the application process for the new Janitor

position, did not take the practical test or the reading test.

* Plaintiff Shirley Brown was the only one to pass both the

practical test and the reading test. Brown was offered employment in

the new Janitor position, which she accepted. She was placed on the

step in the new salary schedule that corresponded to the step she had

occupied in the Janitor I salary schedule.

‘ The day-by-day substitutes working for the Board were later

offered an opportunity to apply for the new Janitor position. They,

unlike the part-time Janitor I employees, were required to exhibit, at a

(Continued on following page)

36a

condition of this probation. Those who accepted the proba-

tionary Janitor position would be paid at the lowest step in

the new pay scheme until demonstrating an eighth-grade

reading level on the retest, at which time the person would

be moved up the salary schedule to a step corresponding to

the step she had occupied on the old Janitor I salary

schedule. According to Employees, some were informed

that, if they failed the reading test a second time, they

would lose their jobs; and all were informed that, if they

decided to accept the new Janitor position on a probation-

ary basis, they could not return to their old Janitor I

positions. Employees also claim that they were informed

that any Janitor I employee who failed the first reading

test for the new Janitor position would not be allowed to

remain in her current Janitor I position while preparing to

retake the test. Also, according to Employees, when

Plaintiff Rosa Malveau asked James Manley why the

Janitor I employees had to take a reading test for the new

Janitor position, Manley responded, “That’s what you get

for filing a lawsuit.”

After filing a charge with the Equal Employment

Opportunity Commission, in which Employees claimed

that the Board discriminated against them on the basis of

their gender and retaliated against them for participating

in the state court lawsuit, Employees filed the instant suit

against the Board in the federal district court. Their

minimum, a fifth grade reading level before being offered the job on a

probationary basis. When the Board, after advertising the position to

the public, began to fill vacancies in the Janitor position, it held those

applicants to the eighth grade reading requirement; if they failed to

exhibit an eight [sic] grade reading level, they were not offered the

position.

37a

federal suit claimed unlawful retaliation and disparate

impact employment discrimination under Title VII, as well

as unlawful retaliation under 42 U.S.C. § 1983. Conclud-

ing that Employees failed to state a prima facie case of

retaliation or disparate impact discrimination under Title

VII, or of retaliation under § 1983, the district court

granted the Board’s motion for summary judgment and

dismissed all of Employees’ claims.

We review the district court’s grant of summary

judgment de novo. Tolson v. Avondale Indus., Inc., 141

F.3d 604, 608 (5th Cir. 1998). Summary judgment is proper

when there “is no genuine issue as to any material fact

and the moving party is entitled to judgment as a matter

of law.” Conoco, Inc. v. Medic Sys., Inc., 259 F.3d 369, 371

(5th Cir. 2001) (citation omitted). A court considering a

motion for summary judgment must draw all reasonable

inferences in favor of the non-moving party. Duplantis v.

Shell Offshore, Inc., 948 F.2d 187, 189 (5th Cir. 1991).

Employees contend that the Board implemented the

new salary structure and reading requirement for the new

Janitor position in retaliation for Employees’ participation

in a previous state lawsuit against the Board. According to

Employees, the district court erred in concluding that

Employees failed to make a prima facie case of retaliation

under Title VII.°

* Under Title VII,

it is an unlawful practice for an employer to discriminate

against any of his employees . . . because [the employee]

(Continued on following page)

38a

: To survive summary judgment in a Title VII retalia-

tion case, the plaintiff must make a prima facie showing:

“(1) that the plaintiff engaged in activity protected by Title

VII, (2) that an adverse employment action occurred, and

(3) that a causal link existed between the protected activ-

ity and the adverse action.” Raggs v. Miss. Power & Light

Co., 278 F.3d 463, 471 (5th Cir. 2002). An employment

action that “does not affect job duties, compensation, or

benefits” is not an adverse employment action under Title

VII. Hunt v. Rapides Healthcare Sys., LLC, 277 F.3d 757,

769 (5th Cir. 2001). Only “ultimate employment decisions

such as hiring, granting leave, discharging, promoting,

and compensating” satisfy the adverse employment action

element. Dollis v. Rubin, 77 F.3d 777, 781-82 (5th Cir.

1995) (citation omitted). A demotion also qualifies as an

adverse employment action under Title VII. Sharp v. City

of Houston, 164 F.3d 923, 933 n.21 (5th Cir. 1999). Title

VII does not, however, address “every decision made by

employers that arguably might have some tangential

effect upon those ultimate decisions.” Burger v. Cent.

Apartment Mgmt., 168 F3d 875, 878 (5th Cir. 1999). For

has opposed any practice made an unlawful employment

practice by this subchapter, or because [the employee) has

made a charge, testified, assisted, or participated in any

manner in an investigation, proceeding, or hearing under

this subchapter.

42 US.C. § 2000e-3(a). The meaning of “discriminate” in § 2000e- 3(a) is

informed by § 2000e-2(aX1), which provides: “It should be an unlawful

employment practice 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.” Fierros v. Texas Dept. of Health, 274 F.3d

187, 191 (5th Cir.2001).

39a

example, a decision made by an employer that only limits

an employee’s opportunities for promotion or lateral

transfer does not qualify as an adverse employment action

under Title VII. See Burger, 168 F.3d at 878-80 (holding

that an employer’s refusal of an employee’s request for a

“purely lateral transfer” does not qualify as an adverse

employment action under Title VII); Dollis, 77 F.3d at 782

(affirming the decision that an employer’s denial of a “desk

audit” to a female employee is not an adverse personnel

action under Title VII, even though the employee claimed

it was an ultimate employment decision that restricted her

“promotional opportunities”).

Here, the district court reasoned that Employees

failed to demonstrate that the Board’s implementation of

the reading requirement and new salary structure for the

new Janitor position was an ultimate employment deci-

sion, since the creation of the new Janitor Position was not

an “ordinary promotion situation,” and since Employees

had the choice of staying in their current Janitor I posi-

tions with no adverse consequences. However, according to

Employees, the Board’s implementation of a reading

requirement and a new salary structure for the new

Janitor position thwarted Employees’ immediate “promo-

tion” to their appropriate pay level and step,° and was,

* Employees argue that the Board’s new policy for “promoting”

Janitor I employees into the new Janitor position was out of sync with

its established policy for promoting employees, and therefore thwarted

their “promotion” to the appropriate pay level and step in the new

Janitor position. The established policy of the Board for promoting an

employee was to assign that employee to a pay grade called for by the

new position at a step equal to or above his or her previous salary, plus

5%. In contrast, a Janitor I employee who accepted the new Janitor

position was placed either at step zero (if she did not pass the reading

(Continued on following page)

40a

therefore, an ultimate employment decision. The Board’s

placement of “onerous” conditions on the new Janitor

position, Employees contend, denied Employees the

greater hours, greater compensation, and medical benefits

which they sought.

Regardless of whether the conditions placed on the

new Janitor position were unfavorable to Employees

seeking to be “promoted” to it, the Board’s implementation

of this new position, with its new salary structure and

reading requirement, did not amount to an ultimate

employment decision under Title VII. As the district court

correctly reasoned, the move from Janitor I to the new

Janitor position was not a part of “any internal ordered

scheme of promotion to which the plaintiffs were entitled,

either from years of service or job performance.” Pursuant

to the Consent Decree, which provided that “interested

and qualified incumbent employees in the Janitor I...

positious [would] be provided ... an opportunity to be

promoted to the new Janitor position,” the Board gave

Employees a right of first refusal for the new J anitor

position.’ Yet, Employees have not provided any authority

test) or in the same step of the new scale (if she passed the test), which

was a lower hourly rate. Thus, Employees complain that, even though

the Consent Decree characterized the move from the Janitor I position

to the new Janitor position as an opportunity to be “promoted,” those

Janitor I employees would have to accept a lower pay rate in order to

move into the new position, regardless of their experience. For example,

Plaintiff Rosa Malveau, who was at step 15 of the Janitor I pay scale

(G-12), $10.90 per hour, argues that the Board should have offered to

place her in step 19 of the new Janitor scale (G-14), $11.03 per hour,

instead of step zero, $5.82 per hour.

’ Following the district court's approval of the Consent Decree, all

Janitor I employees, including Employees, were contacted either by

(Continued on following page)

4la

showing that an employer’s act of giving an employee a

right of first refusal for a new job can constitute an ulti-

mate employment decision under Title VII. Neither have

Employees demonstrated that, by giving Employees a

right of first refusal for the new Janitor position, the

Board in any way coerced Employees into accepting that

position and its lower hourly wages. On the contrary, the

summary judgment evidence established that, consistent

with the Consent Decree, Janitor I employees who either

did not apply for the new Janitor position or did not accept

the position on a probationary basis were allowed to stay

in their Janitor I positions at their current wage rate and

seniority status, free from adverse consequences.’ Thus,

the Board’s implementation of the new Janitor position,

James Manley, or his secretary, regarding the new Janitor position.

Janitor I employees were given the option of either going forward with

the application process or remaining in their Janitor I positions. Those

Janitor I employees interested in applying were directed to report to

the Maintenance office complex to participate in testing designed to

evaluate whether they possessed the qualifications required for the new

Janitor position. Persons employed as Janitor | employees (including

Employees herein, except those who chose not to participate) were the

only ones tested at the first testing sessions for the new Janitor

position. After completing the testing process, those who participated

were contacted by Manley to discuss their test results_and options,

including the option of taking the new Janitor position on a probation-

ary basis.

* Employees state that “almost all plaintiffs-appellants, like Ms.

Malveau, rejected the new Janitor job because it meant too many more

work hours for too little pay with too many risks. Only Maggie Tucker

... accepted the new Janitor position, regardless of the cut in hourly

pay.”

* The Consent Decree directs that “an incumbent employee who

declines the newly established Janitor or Lead Janitor position shall

retain his or her current wage rate, seniority status, and other atten-

dant benefits, if any.”

42a

for which Employees had a right of first refusal, did not

constitute an ultimate employment decision because it did

not affect Employees’ job duties, compensation, or level of

benefits as Janitor I employees. See Hunt, 277 F.3d at 769.

As for the reading requirement, Employees argue that

its implementation was an ultimate employment decision

by the Board because it “was represented to [Employees]

as the requirement for an immediate promotion to a full-

time position which they sought,” and because it was a

“stumbling block” to their “immediate promotion” to the

full-time position, for which, Employees claim, they were

qualified.” We do not agree that the Board’s implementa-

tion of the reading requirement constituted an ultimate

employment decision. Although the reading test prevented

all but one of the Employees from making an immediate

change to the new Janitor position, any of the Employees

who failed the reading test still had the option of exercis-

ing her right of first refusal and occupying the new Janitor

position on a probationary basis until the retest. Because

Employees do not allege that the reading test was unfairly

rigged to prevent them from passing, we may assume that

the test was a fair assessment of reading skills. See Mat-

tern v. Eastman Kodak Co., 104 F.3d 702, 709 (5th Cir.

1997) (reasoning that, because the plaintiff who failed two

“Major Skills Tests” did not maintain that the tests were

unfairly rigged, the tests were, presumably, a “correct

” Employees offered summary judgment evidence suggesting that

the reading test was not an appropriate measure of the janitorial skills

necessary to perform the work required of those in the new Janitor

position, and that they were qualified for the new position because its

duties were essentially the same as their duties as Janitor I employees.

43a

assessment” of her ability to perform those skills). Even

assuming that the Board told Employees they would lose

their jobs if they accepted the probationary position but

failed the retest, the Board’s decision to implement the

reading requirement was, at most, a mediate decision that

could lead to an adverse employment decision for an

applicant who failed that retest. Thus, the Board’s decision

to implement the reading requirement for the new Janitor

position does not qualify as an ultimate employment

decision under Title VII. See Dollis, 77 F.3d at 780 (“Title

VII’s anti-retaliation provision [does not] refer{ ] to...

‘Snterlocutory or mediate’ decisions which can lead to an

ultimate decision.” (internal quotations omitted)).

For these reasons, we conclude that Employees failed

to show that the Board’s implementation of the reading

requirement and new salary structure for the new Janitor

constituted an adverse employment decision.” We there-

fore hold that the district court correctly decided that

Employees failed to make a prima facie showing of Title

VII retaliation.

Employees argue that the Board’s actions had a

disparate impact on female janitorial employees, since the

only persons impacted by the reading test were Janitor I

employees, all of whom were female. Thus, according to

" Since Employees failed to make a prima facie showing of an

adverse employment decision, we need not consider whether Employees

established a causal link between the protected activity and the alleged

adverse emnployment decision.

44a

Employees, the district court erred in ruling that Employ-

ees failed to state a prima facie case of disparate impact

employment discrimination under Title VII. The district

court reasoned that Employees failed to show that the

reading requirement resulted in a sex-based imbalance in

the Board’s workforce, regardless of any pre-existing

imbalance in the workforce.

To establish a prima facie case of Title VII disparate

impact employment discrimination, a plaintiff must show

that the employer’s facially neutral hiring standards

select applicants in a significantly discriminatory pattern.

Dothard v. Rawlinson, 433 U.S. 321, 329, 97 S. Ct. 2720,

53 L. Ed. 2d 786 (1977) (citing Griggs v. Duke Power Co.,

401 U.S. 424, 432, 91 S. Ct. 849, 28 L. Ed. 2d 158 (1971)).

Here, neither party disputes that the reading requirement

was a facially neutral employment practice.” However,

Employees contend that the Board’s implementation of the

reading requirement had a disparate impact on female

employees. According to Employees, female Janitor I

employees were the only incumbent employees

adversely impacted by the reading requirement,

since the mostly-male Janitor II employees could

place into Lead Janitor positions without having to

take a reading test. Employees contend that the Board

“could not permissibly or lawfully create a new standard

that impacted only female employees.”

* Employees do not dispute that all persons, male and female,

seeking full-time employment in the new Janitor position, whether a

Janitor I, a day-by-day substitute, or off the street, were required to

meet the reading requirement by demonstrating an ability to read at an

eight (sic) grade level.

45a

Initially, we must decide how to measure the alleged

disparate impact. Employees propose that, as a group,

incumbent employees who were required to take a reading

test to place into any new janitorial or custodial position

should be compared with all incumbent employees who

placed into any new janitorial or custodial positions. The

Board, however, correctly argues that the we [sic] should

compare the group of applicants who placed into the new

Janitor position with the entire pool of applicants for that

new position. See Bunch v. Bullard, 795 F.2d 384, 395 (5th

Cir. 1986) (“The threshold inquiry ... is whether the

plaintiffs have shown that the tests in question select

applicants for hire or promotion in a [sex] pattern signifi-

cantly different from the pool of applicants.”); Page v. U.S.

Indus., Inc., 726 F.2d 1038, 1053-54 (5th Cir. 1984) (“We

have held that a showing of ‘marked disproportion’ be-

tween the representation of the allegedly disfavored group

in the employer’s workforce and its representation in the

labor pool from which employees are selected suffices to

establish a prima facie case of disparate impact.”).

Using persons who placed into the new Janitor posi-

tion and the entire pool of applicants for that position as

groups for comparison, we must decide whether Employ-

ees presented either statistical or non-statistical evidence

establishing a prima facie case of disparate impact. See

Page v. U.S. Industries Inc., 726 F.2d 1038, 1053 (5th Cir.

1984) (“A plaintiff may use statistical as well as non-

statistical evidence in establishing a prima facie case of

disparate impact.”). Although the female Janitor I employ-

ees were given a right of first refusal for the new Janitor

position, the position was otherwise open to both male and

female applicants. Employees have not produced any

statistical evidence tending to show that the reading

46a

requirement operated in a way which selected applicants

from the protected group — females — in a sex pattern

“markedly disproportionate” from the entire pool of appli-

cants for the new Janitor position, of which Employees

were a part. See Bunch, 795 F.2d at 395 (“The tests must

be ‘significantly discriminatory’ or at least create percent-

ages which are ‘markedly disproportionate.’”) (quoting

Rivera v. City of Wichita Falls, 665 F.2d 531, 534-35 (5th

Cir. 1982)).* Neither have Employees produced non-

statistical evidence demonstrating that the reading

requirement selected females in a sex pattern significantly

different from the entire pool of applicants for the new

Janitor position. Employees simply argue that “Plaintiffs,

all female, were the only ones impacted by the added

reading test.” Thus, Employees have failed to raise a

genuine issue as to whether the facially neutral reading

tests selected applicants in a significantly discriminatory

sex pattern. We therefore hold that the district court

* Employees claim “there is no need to resort to a statistical

analysis.” The Board, however, provided statis ical evidence showing

that the selection of the protected group, females, actually exceeded the

selection of the non-protected group, males. The Board explains that,

Bullard, 795 F.2d 384, 395 (5th Cir. 1986) (determining that the

reality, more women have been selected for employment for the new

janitor position than men despite the testing requirements.

47a

correctly concluded that Employees failed to establish a

prima facie case of Title VII disparate impact discrimina-

tion.

Employees also contend that the district court erred in

reasoning that Employees failed to make a prima facie

showing of an adverse employment action under § 1983.

Employees argue that, because of their participation in a

state lawsuit against the Board, an activity protected by

the First Amendment, the Board retaliated against them

through its “failure to promote and pay [Employees] at the

appropriate rate” and its “use of [an] inappropriate test to

block [Employees’] rightful positions.”

To state a claim of retaliation for exercise of First

Amendment rights under § 1983, Employees must show

that 1) they engaged in a protected activity, 2) they suf-

fered an adverse employment action, 3) there was a causal

connection between the two, and 4) the execution of a

policy, custom, or practice of the Board caused the adverse

action. Sharp v. City of Houston, 164 F.3d 923, 932 (5th

Cir. 1999). Section 1983’s definition of adverse employ-

ment action, like Title VII’s definition, includes ultimate

employment decisions, such as hiring, granting leave,

discharging, promoting, demoting, and compensating. Id.

at 933 n. 21.

Employees’ § 1983 claim concerns the Board’s alleged

“failure to promote and pay at the appropriate rate” and

“use of [an] inappropriate test to block ([Employees’]

rightful positions.” Thus, Employees’ § 1983 claim pur-

portedly concerns promoting and compensating, activities

which are characterized as ultimate employment actions

48a

under § 1983 and Title VII. Jd. However, in light of the

analysis supporting our determination that Employees

have failed to make a prima facie showing that the Board’s

implementation of a new salary structure and reading

requirement for the new Janitor position constituted an

ultimate employment action under Title VII, see infra Part

II, we conclude that Employees have failed to make a

prima facie showing that the Board’s alleged “failure to

promote and pay [Employees] at the appropriate rate” and

“use of [an] inappropriate test to block [Employees’]

rightful positions” constitutes an ultimate employment

action under § 1983.

Loney IO OT —roens

We recognize that §1983’s definition of adverse

employment action may be broader than Title VII’s defini-

tion, which limits the meaning of adverse employment

action to ultimate employment decisions. Sharp v. City of

Houston, 164 F.3d at 933 n.21. (citing Mattern v. Eastman

Kodak Co., 104 F.3d 702, 708 (5th Cir. 1997), cert. denied, 3

522 U.S. 932, 118 S. Ct. 336, 139 L. Ed. 2d 260 (1997)). For 3

example, the definition of adverse employment action

under § 1983 may include reprimands and disciplinary

filings, which do not qualify as ultimate employment

decisions under Title VII. See id. Also, for purposes of a

§ 1983 claim, a transfer that is “equivalent to a demotion”

can be an adverse employment action. 164 F.3d at 933.

However, we need not consider whether the Board’s

alleged “failure to promote and pay [Employees] at the

appropriate rate” or its “use of [an] inappropriate test to

block [Employees’] rightful positions” meets § 1983's

broadened definition of adverse employment ection, since

SO ate c

SR ree wes wy “

ln ai da it

49a

Employees do not characterize such actions as a repri-

mand, disciplinary action, or transfer “equivalent to a

demotion.”“

For these reasons, we conclude that Employees failed

to demonstrate an adverse employment action under

§ 1983. We therefore hold that the district court correctly

decided that Employees failed to make a prima facie

showing of retaliation under § 1983.

In sum, the district court did not err in deciding that

the Board’s implementation of the new Janitor position,

with its reading requirement and new salary structure,

did not qualify as an “adverse employment action” under

Title VII, or under § 1983. Nor did the district court err in

concluding that Employees failed to show that the Board’s

implementation of a reading requirement for the new

Janitor position selected applicants in a significantly

discriminatory sex pattern. Because Employees failed to

“ Even though Employees argue that they had to accept lower

hourly pay in order to move from Janitor I position to the new Janitor

position, and that this was contrary to the Board’s established policy for

promoting employees to a step equal to or above their previous salary,

plus 5%, Employees do not characterize the move from Janitor I to the

new Janitor position as a transfer “equivalent to a demotion.” Even if

Employees had argued that the move qualifies as a transfer “equivalent

to a demotion,” it is unlikely that we would agree to characterize it as

such, since Employees presented no evidence suggesting that they felt

compelled to request a transfer to the new Janitor position. See Sharp,

164 F3d at 934 (reasoning that the jury reasonably could equate the

employee’s requested transfer with a demotion because the employer

waited until the employee felt “compelled to request a transfer”).

50a

state a prima facie case of retaliation or disparate impact

employment discrimination under Title VII, and because

Employees failed to state a prima facie case of retaliation

under § 1983, we affirm the district court’s grant of sum-

mary judgment in favor of the Board.

AFFIRMED.

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5la

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

DOROTHY BANKS, ET AL

VERSUS CIVIL ACTION

EAST BATON ROUGE PARISH NO. 98-974-A

SCHOOL BOARD, ET AL

RULING

Subsequent to granting a-motion for summary judg-

ment upon all of the claims of plaintiffs under Title VII, 42

U.S.C. §2000e, et seq. (doc. 97), the court informed the

parties that it was considering the propriety of granting

summary judgment sua sponte on the remaining claims of

plaintiffs under 42 U.S.C. §1983 (doc. 99) and invited both

sides to submit briefs on that issue. Both sides have

responded and the court has carefully reviewed the mat-

ter.

The court is now convinced that the same undisputed

material facts that mandated dismissal of the Title VII

claim also mandate dismissal of the §1983 claims.

There is no need for oral argument.

Facts and Procedure History

Plaintiffs are sixteen women formerly or currently

employed as janitors by the East Baton Rouge Parish

School Board (“School Board”). Prior to 1992, the School

Board employed janitors in three different designations.

These jobs were titled janitor I, janitor II, andjanitor Ill.

The janitor I position involved employment for six hours a

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day during nine months of the year. Most of the janitor I

positions were filled by female employees. The janitor II

position involved work essentially identical to that per-

formed by janitors I, with the addition of traditionally

“male” duties, such as law [sic] care and other outside

chores. The janitor II position was an eight hour a date

[sic], year round position. Most of the janitor II positions

were filled by males. The janitor II designation was a full

time position entailing work identical to the other two

positions, with the addition of some supervisory functions,

such as locking up the buildings, and supervising late

cleaning crews.

Plaintiffs were employed in the janitor I position. In

June of 1992, the School Board decided to cut the hours of

the janitor I job from six hours a week [sic], to four. Some

benefits were also eliminated. In June of 1993, 46 female

janitorial employees, including the plaintiffs, filed suit

against the School Board in the 19th Judicial District

Court, Parish of East Baton Rouge. The suit alleged that

the reduction in hours and benefits had a disparate impact

on female employees in violation of La. R.S. 51:2231, et

seq., as well as intentional discrimination in violation of

La. R.S. 23:1006. The lawsuit is still pending.

For purposes of this issue before the court, the follow-

ing material facts (which are the same undisputed facts in

the court’s prior ruling [doc. 97]) are admitted.

5. Plaintiffs herein are among those plaintiffs who filed a

lawsuit in June, 1993 against the East Baton Rouge

Parish School Board in state court alleging a violation of

state law for the reduction of their hours in violation of

L.R.S. 17:422.5, as well as employment discrimination on

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the basis of sex in violation of L.R.S. 23:1006 and L.RS.

51:2231, et. seq., Louisiana’s anti-discrimination statutes.

14. In April, 1997, a lawsuit was filed against the East

Baton Rouge Parish School Board alleging discrimination

in the hiring and promotion for Janitor II and Janitor III

positions on the basis of sex in violation of Title VII, 42

U.S.C. §2000¢, et. seg., by the United States Department of

Justice.

15. A settlement between the School Board and the

Department of Justice was negotiated in the form of a

consent decree.

16. The consent decree also required that the part-time

Janitor I’s would be given the opportunity to apply for the

new Janitor position if they met the qualifications.

19. Beginning in approximately 1996, the School Board,

through its then Associate Superintendent for Human

Resources and Instruction, Christine (Chris) Arab, began

evaluating all school system positions, including job

descriptions and salary schedules, in an attempt to pin-

point those departments within the school system which

were operating inefficiently.

20. The goal of this study was to illuminate areas in

which the school system could save money and then use

the funds for its instructional services.

21. All janitor and custodian classifications were in-

cluded in this study.

29. An incident occurred where a custodian improperly

used a chemical to eliminate ants from an office complex,

causing at least one of its employees to require medical

attention.

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30. Upon questioning the custodian involved, Mr. James

Broussard, former Risk Manager for the School Board,

concluded that the employee involved could not read.

31. Mr. Broussard conducted an informal survey among

the custodian supervisors and principals of schools regard-

ing the perceived literacy problem among custodial and

janitorial staff.

33. Mr. Broussard believed that the safety guidelines of

OSHA were written at an eighth grade reading level.

34. Following this investigation, Mr. Broussard recom-

mended to Mrs. Arab, his supervisor, that a reading

requirement be placed into the job descriptions of the

janitorial and custodial staff to avoid future incidents

whereby persons could be injured due to an — mployee’s

inability to read and follow the directions pro ided on the

chemicals used in everyday cleaning of the schools in the

system.

37. *In the fall of 1997, plaintiffs herein were among those

persons contacted by the Human Resources Department

for the Physical Plant Services department of the School

Board and directed to report to the Maintenance office

complex to participate in testing designed to evaluate the

applicant’s qualifications for the new full-time Janitor

position.

38. The Janitor I’s were given the option of choosing to go

forward with the application process or to remain in their

position as a Janitor I.

39. Those persons who reported, including plaintiffs

herein, except for Dorothy Banks, Amy Lane, and Bertha

Twine, were given a practical test to evaluate their skills

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in operating equipment and in performing certain required

tasks of the job.

40. The practical test evaluated an individual’s ability to

operate a lawn mower, a weed-eater, a floor buff-

ing/cleaning machine, to climb ladders safely, to change

light bulbs in the flourescent lighting fixtures in the

schools, to change air conditioning filters, etc.

41. Plaintiffs were also subjected to a written Test of

Adult Basic Education.

44. The requirement of an ability to read at an eighth

grade level was included on the job description for the new

Janitor position.

45. It was also provided in the Consent Decree approved

by the court in June, 1997 that those applicants selected

for possible employment in the new Janitor or Lead

Janitor positions might be required by the School Board

“to pass additional lawful and job-related selection devices

or requirements.”

56. Some plaintiffs who participated in the testing were

contacted by Mr. James Manley to discuss their perform-

ance on the tests.

57. All plaintiffs passed the practical test, but only one

plaintiff scored at an eighth grade reading equivalency on

the Test of Adult Basic Education.

58. Even though most of the plaintiffs did not meet the

reading requirement for the job, they were given the

option of remaining in their Janitor I positions or taking

the new position on a probationary basis, even if their

reading level was at the kindergarten level. At such time

as they reached an eighth grade reading level, each

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plaintiff would be eligible for permanent status in that

position.

69. On November 18, 1998, plaintiffs herein filed the

instant lawsuit in the United States District Court for the

Middle District of Louisiana, after having filed charges

with the Equal Employment Opportunity Commission on

behalf of themselves and others similarly situated, charg-

ing the School Board with discrimination against them on

the basis of their sex, as well as retaliation for their being

parties to the state lawsuit.

70. Plaintiffs alleged that the establishment of the

conditions, qualifications and job description for the new

full-time janitor position, including the requirement that

applicants pass both the practical and reading tests before

becoming eligible for employment in the position, was done

by the defendants “with the intent to retaliate against

female employees who had filed a lawsuit with the School

Board [or] alternatively, the conditions that [the defen-

dants] placed on this new position had a discriminatory

impact on the plaintiffs.”

On September 15, 2000, the defendants filed a motion

for summary judgmer* as to the plaintiffs’ claims under

Title VII (doc. 73). The individual defendants also moved

for summary judgment on the basis of their claim of

qualified immunity (doc. 65), and for summary judgment

as to the claims of plaintiffs Dorothy Banks, Bertha Twine,

and Amy Lane (doc. 69).

On June 5, 2001, the court granted the defendants’

Motion for Summary Judgment as to the Plaintiffs’ claims

under Title VII (doc. 97). In that ruling, the court held that

the plaintiffs’ allegations failed to satisfy the requisite

elements of a Title VII retaliation claim. Specifically, the

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court held that the actions complained of by the plaintiffs

were not “adverse employment actions” in light of Dollis v.

Rubin, 77 F.3d 777 (5th Cir. 1995), which held that only

“ultimate employment decisions,” such as “hiring, granting

leave, discharging, promoting, and compensating,” could

qualify as “adverse employment actions.” Jd. at 782. On

July 18, 2001, the court informed the parties that it was

considering granting summary judgment, on its own

motion, as to the plaintiffs’ remaining sex discrimination

claim under 42 U.S.C. §1983 (doc. 99). The parties have

responded to the court’s notice with memoranda.

DISCUSSION

As set forth in Southard v. Texas Board of Criminal

Justice, 114 F.3d 539 (5th Cir. 1997): a

“To assert a cause of action for retaliation for the

exercise of a federally protected right, a plaintiff

must show that she:

1) engaged in a protected activity;

2) an adverse employment action followed;

and

3) there was a causal connection between the

activity and the adverse action.” 114 F.3d at

554.

In Southland [sic], plaintiff claimed that the retalia-

tory action against her was less favorable work assign-

ments. The Court stated:

“Not every negative employment decision or

event is an adverse employment action that can

give rise to a discrimination or retaliation cause

of action under section 1983.... Adverse

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employment actions include discharges, demo-

tions, refusals to hire, refusals to promote, and

repriman

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