Allen Thompson v. City of Waco, Texas
779 F.3d 343
5th Cir.2015Background
- This opinion records the denial of a Petition for Rehearing En Banc (en banc poll: 11 against rehearing; 4 in favor).
- Judge Jolly (joined by Judges Jones, Smith, and Owen) dissents from the denial and attaches a written dissent.
- The dissent highlights inconsistent Fifth Circuit precedent about what constitutes an "adverse employment action" in Title VII and related discrimination cases.
- Prior panel decisions have variously held that transfers or reassignments are insufficient, that only "ultimate employment decisions" qualify, and that denials of transfers or changes in responsibilities may qualify.
- The dissent argues the panel and circuit precedent are in "ping-pong" conflict, producing no clear standard for district courts and litigants, and urges en banc review to clarify the test.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a transfer/reassignment or change/loss of job responsibilities can be an "adverse employment action" under Title VII | Transfers/denials of transfer or material changes in duties can be adverse if they are significant and materially affect employment | Transfers, reassignments, or leave often are not "ultimate employment decisions" and, without more, are insufficient to show adverse action | Panel opinion adopts a flexible rule: a change in or loss of job responsibilities may, if sufficiently significant and material, constitute an adverse employment action; dissent argues this creates circuit confusion |
| Whether placing an employee on paid leave is an adverse action | (argues leave can be adverse depending on context) | Leave is not an adverse employment action | Prior Fifth Circuit authority (McCoy) held placing an employee on paid leave was not an adverse employment action; dissent cites this as part of inconsistent precedent |
| Whether denial of a transfer qualifies as adverse | Denial of transfer may qualify even without increased pay or tangible benefits | Denial of transfer not necessarily adverse absent tangible harm | Some Fifth Circuit panels (Alvarado) have held denial of transfer may qualify; other panels have stated only ultimate decisions qualify, creating conflict |
| Whether the court should hear the case en banc to resolve circuit-wide inconsistency | En banc review is needed to establish a clear, uniform standard for "adverse employment action" | Denial of rehearing en banc appropriate; panel precedent is sufficient | Court denied rehearing en banc; dissent urges en banc to resolve conflicting precedents |
Key Cases Cited
- Pegram v. Honeywell, Inc., 361 F.3d 272 (5th Cir. 2004) (reassignment or less desirable transfer, without more, insufficient to establish adverse employment action)
- McCoy v. City of Shreveport, 492 F.3d 551 (5th Cir. 2007) (adverse actions limited to "ultimate employment decisions"; placing on paid leave not adverse)
- Alvarado v. Texas Rangers, 492 F.3d 605 (5th Cir. 2007) (denial of a transfer may qualify as an adverse employment action even without increased pay)
- Bouvier v. Northrop Grumman Ship Sys., Inc., [citation="350 F. App'x 917"] (5th Cir. 2009) (reaffirmed McCoy’s list of "ultimate employment decisions")
- Thompson v. City of Waco, Texas, 764 F.3d 500 (5th Cir. 2014) (panel held that a change in or loss of job responsibilities may be sufficiently significant to be an adverse employment action)