Thompson v. City of Waco

• Decision Date: 03 September 2014
• Docket Number: No. 13–50718.,13–50718.
• Citation: 764 F.3d 500
• Parties: Allen THOMPSON, Plaintiff–Appellant, v. CITY OF WACO, TEXAS, Defendant–Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

764 F.3d 500

Allen THOMPSON, Plaintiff–Appellant,

v.CITY OF WACO, TEXAS, Defendant–Appellee.

No. 13–50718.

United States Court of Appeals,Fifth Circuit.

Sept. 3, 2014.

Royce John Cullar, Jr., Esq., Cullar & McLeod, L.L.P., Waco, TX, for Plaintiff–Appellant.

Charles D. Olson, Michael W. Dixon, Esq., Haley & Olson, P.C., Charles Alfred MacKenzie, Esq., Law Office of C. Alfred MacKenzie, Waco, TX, for Defendant–Appellee.

Appeal from the United States District Court for the Western District of Texas.

Before SMITH, CLEMENT, and HIGGINSON, Circuit Judges.

HIGGINSON, Circuit Judge:

Allen Thompson sued the City of Waco for racial discrimination under 42 U.S.C. § 1981 and Title VII. The district court dismissed Thompson's claims pursuant to Rule 12(b)(6), holding that Thompson failed to allege an adverse employment action. Because Thompson plausibly alleges that he was subject to the equivalent of a demotion, we reverse the district court's judgment.

I.

Thompson is an African American detective in the Waco Police Department. The Department suspended Thompson and two white detectives based on allegations that they had falsified time sheets. After reinstating the three detectives, the Department imposed written restrictions on Thompson that it did not impose on the two white detectives. The restrictions state that Thompson cannot (1) search for evidence without supervision; (2) log evidence; (3) work in an undercover capacity; (4) be an affiant in a criminal case; (5) be the evidence officer at a crime scene; and (6) be a lead investigator on an investigation. According to Thompson, these restrictions have stripped him of the “integral and material responsibilities of a detective,” and constitute a demotion. Thompson alleges that he “no longer functions as a full-fledged detective; he is, effectively, an assistant to other detectives.” He further alleges that his new position has “significantly different and diminished material responsibilities,” is less prestigious, will hinder his opportunities for advancement, and is less interesting. He no longer uses the skills, education, and experience that he had acquired and regularly used as a detective.

II.

We review a district court's dismissal under Federal Rule of Civil Procedure 12(b)(6)de novo. Doe ex rel. Magee v. Covington Cnty. Sch. Dist. ex rel. Keys, 675 F.3d 849, 854 (5th Cir.2012) (en banc). We accept all well-pleaded facts as true and view all facts in the light most favorable to the plaintiff. Id. We need not, however, accept the plaintiff's legal conclusions as true. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). To survive dismissal, a plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. “Our task, then, is to determine whether the plaintiff stated a legally cognizable claim that is plausible, not to evaluate the plaintiff's likelihood of success.” Covington, 675 F.3d at 854 (internal quotation marks and citation omitted).

III.

Title VII makes it unlawful for an employer “to fail or refuse to hire or to discharge any individual or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race....” 42 U.S.C. § 2000e–2(a)(1) (emphasis added). To establish a discrimination claim under Title VII or § 1981, a plaintiff must prove that he or she was subject to an “adverse employment action”—a judicially-coined term referring to an employment decision that affects the terms and conditions of employment. See, e.g., Pegram v. Honeywell, Inc., 361 F.3d 272, 281–82 (5th Cir.2004); see also Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 62, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006) (explaining that the language of Title VII's antidiscrimination provision “explicitly limit[s] the scope of that provision to actions that affect employment or alter the conditions of the workplace”).

For Title VII and § 1981 discrimination claims, we have held that adverse employment actions consist of “ultimate employment decisions” such as hiring, firing, demoting, promoting, granting leave, and compensating. See McCoy v. City of Shreveport, 492 F.3d 551, 560 (5th Cir.2007); Alvarado v. Tex. Rangers, 492 F.3d 605, 612 (5th Cir.2007); Pegram, 361 F.3d at 282. “[A]n employment action that ‘does not affect job duties, compensation, or benefits' is not an adverse employment action.” Pegram, 361 F.3d at 282 (quoting Banks v. E. Baton Rouge Parish Sch. Bd., 320 F.3d 570, 575 (5th Cir.2003)).

Additionally, our court has held that a transfer or reassignment can be the equivalent of a demotion, and thus constitute an adverse employment action. See Alvarado, 492 F.3d at 612–15. “[T]o be the equivalent to a demotion, a transfer need not result in a decrease in pay, title, or grade; it can be a demotion if the new position proves objectively worse—such as being less prestigious or less interesting or providing less room for advancement.” Id. at 613 (quoting Sharp v. City of Hous., 164 F.3d 923, 933 (5th Cir.1999)); Pegram, 361 F.3d at 283 (“[A]n employment transfer may qualify as an adverse employment action if the change makes the job objectively worse.” (internal quotation marks omitted)); Hunt v. Rapides Healthcare Sys., LLC, 277 F.3d 757, 770 (5th Cir.2001) (“A job transfer that includes a shift change that involves changes in duties or compensation or can be objectively characterized as a demotion may be an ‘adverse employment action’....”); see, e.g., Sharp, 164 F.3d at 933 (“The jury could have viewed transferring from the elite Mounted Patrol to a teaching post at the Police Academy to be, objectively, a demotion.”); Forsyth v. City of Dall., 91 F.3d 769, 774 (5th Cir.1996) (recognizing as demotions the reassignment of two police officers from the Intelligence Unit to night patrol because the Intelligence Unit positions “were more prestigious, had better workinghours, and were more interesting than night patrol” and “few officers voluntarily transferred from the Intelligence Unit to night patrol and other officers had been so transferred as punishment”); Click v. Copeland, 970 F.2d 106, 110 (5th Cir.1992).¹

In this case, the district court held that Thompson failed to allege an adverse employment action because he pleaded only “the loss of some job responsibilities,” without any change in “title, pay, and benefits.” On appeal, Thompson contends that he alleged more than the mere loss of some job responsibilities; he contends that he alleged that the Department stripped him of the “integral and material responsibilities of a detective.” According to Thompson, he no longer functions as a detective; he has been effectively demoted to the position of an assistant detective.

This court has recognized that the mere “loss of some job responsibilities” does not constitute an adverse employment action. See Williams v. U.S. Dept. of Navy, 149 Fed.Appx. 264, 269–70 (5th Cir.2005); Hernandez v. Crawford Bldg. Material Co., 321 F.3d 528, 532 n. 2 (5th Cir.2003) (citing Mota v. Univ. of Tex. Hous. Health Sci. Ctr., 261 F.3d 512, 521 (5th Cir.2001) for the proposition that the “loss of some job duties” is not an ultimate employment decision); Watts v. Kroger Co., 170 F.3d 505, 511–12 (5th Cir.1999) (holding that a change in work schedule and request that an employee perform two additional tasks did not rise to the level of an adverse employment action). Other circuits similarly agree that “a mere inconvenience or an alteration of job responsibilities” will not suffice. See Crady v. Liberty Nat'l Bank & Trust Co., 993 F.2d 132, 136 (7th Cir.1993); see also Kidd v. Mando Am. Corp., 731 F.3d 1196, 1204 n. 11 (11th Cir.2013) (noting that “it's a rare case where a change in employment responsibilities qualifies as an adverse employment action”); Mungin v. Katten Muchin & Zavis, 116 F.3d 1549, 1557 (D.C.Cir.1997) (agreeing with “other circuits [which] have held that changes in assignments or work-related duties do not ordinarily constitute adverse employment decisions if unaccompanied by a decrease in salary or work hour changes”).

This does not mean that a change in or loss of job responsibilities can never form the basis of an actionable discrimination claim, however. In certain instances, a change in or loss of job responsibilities—similar to the transfer and reassignment contexts—may be so significant and material that it rises to the level of an adverse employment action. See Schirle v. Sokudo USA, LLC, 484 Fed.Appx. 893, 898 (5th Cir.2012) (“Still, it is recognized that a significant diminishment of ‘material responsibilities,’ or a demotion, also constitutes an adverse employment action under Title VII.” (internal citations omitted)); Davis v. Town of Lake Park, 245 F.3d 1232, 1245 (11th Cir.2001) (“We do not suggest that a change in work assignments can never by itself give rise to a Title VII claim; in unusual instances the change may be so substantial and material that it does indeed alter the ‘terms, conditions, or privileges' of employment.”); Michael v. Caterpillar Fin. Servs. Corp., 496 F.3d 584, 594 (6th Cir.2007) (explaining that a “materially adverse change might be indicated by ... a demotion evidenced by ... significantly diminished material responsibilities”); Czekalski v. Peters, 475 F.3d 360, 364 (D.C.Cir.2007) ( “ ‘[W]ithdrawing an employee's supervisory duties,’ for example, ‘constitutes an adverse employment action.’ ”); Dahm v. Flynn, 60 F.3d 253, 257 n. 2 (7th Cir.1994) (“[I]f the duties of an assistant prosecutor were changed from trying cases to sharpening pencils, that change would...