Stephen MYLETT, Plaintiff-Appellant, v. CITY OF CORPUS CHRISTI; Pete Alvarez, Chief of Police, Individually and in His Official Capacity Defendants-Appellees.
No. 03-40774.
United States Court of Appeals, Fifth Circuit.
May 4, 2004.
473
Summary Calendar
Peter Gerard Merkl, Senior, Assistant City Attorney, City of Corpus Christi Legal Department, J A Canales, Nancy M. Simonson, Canales & Simonson, Corpus Christi, TX, for Defendants-Appellees.
Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.
PER CURIAM:*
Stephen Mylett (“Mylett“), a lieutenant with the Corpus Christi Police Department, appeals the district court‘s grant of summary judgment to Defendants City of Corpus Christi and Pete Alvarez (“Alvarez“), Chief of Police, on Mylett‘s claims of discrimination and retaliation under Title VII of the Civil Rights Act of 1964, as amended,
To survive a motion for summary judgment on a Title VII claim, a plaintiff must present a prima facie case of discrimination or retaliation. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Banks v. East Baton Rouge Parish Sch. Bd., 320 F.3d 570, 575 (5th Cir.2003). A prima facie case of discrimination requires a plaintiff to show (1) he is a member of a protected group, (2) he was qualified for the position at issue, (3) his employer took an adverse employment action against him, and (4) he was replaced by someone not a member of his protected group or he was treated less favorably than others similarly-situated to him. See McDonnell Douglas, 411 U.S. at 802. To establish a prima facie case of retaliation, a plaintiff must show (1) he participated in activity protected by Title VII, (2) his employer took an adverse employment action against him, and (3) a causal connection exists between the protected activity and the adverse employment action. Raggs v. Miss. Power & Light Co., 278 F.3d 463, 471 (5th Cir.2002). A prima facie case raises an inference of discrimination or retaliation, and the burden shifts to the defendant to articulate a
Where, as here, § 1983 is used as a parallel remedy for Title VII violations, the summary judgment analysis under the two statutes is the same. See Patel v. Midland Mem. Hosp. & Medical Ctr., 298 F.3d 333, 342 (5th Cir.2002).
Mylett alleges that he was discriminated against based on his race (Caucasian) and that he was retaliated against for giving negative testimony about Alvarez in another officer‘s civil rights trial. The district court found that Mylett did not suffer an adverse employment action and that he failed to provide evidence that any actions taken against him were motivated by discriminatory or retaliatory intent. We find that Mylett did not face any adverse employment actions, so he failed to make a prima facie case under either statute.3
The broadest definition of an adverse employment action includes hires, refusals to hire, discharges, promotions, refusals to promote, demotions, compensation decisions, and formal reprimands.4 See Sharp, 164 F.3d at 933; Mattern v. Eastman Kodak Co., 104 F.3d 702, 707 (5th Cir.1997). Mylett argues that he faced the following eight adverse employment actions: (1) refusal to promote, (2) written and verbal reprimands, (3) demotion, (4) denial of prestigious positions, (5) denial of positions with financial benefits, (6) oppressive changes of work hours for no legitimate reason, (7) denial of day shifts granted to all other lieutenants on light duty, and (8) humiliation. He also argues that even if none of these items qualify individually, together they constitute an adverse employment action. We find that the first five actions are mischaracterized and are not supported by the record. The last three are not adverse employment actions. We further find that all eight together do not constitute an adverse employment action.
Mylett‘s promotion was delayed, not denied.5 A delay in promotion is not an adverse employment action where any increase in pay, benefits, and seniority are awarded retroactively. See Benningfield v. City of Houston, 157 F.3d 369, 378 (5th Cir.1998). The district court found that Mylett received retroactive pay, benefits, and seniority,6 so the delay was not an adverse employment action.
Mylett concedes that he was not actually demoted but transferred to the “duty desk” in what was technically a lateral transfer. At least for purposes of § 1983, however, a transfer may be considered the functional equivalent of a demotion and qualify as an adverse employment action if the new position is “objectively worse.” See Sharp, 164 F.3d at 933. Mylett claims that the duty desk was objectively worse than both his previous regular duty position and other light duty jobs. His assignment to the duty desk, however, was a temporary one (approximately one year) to accommodate his need for a light duty position following an injury. “Undesirable work assignments are not adverse employment actions.” Southard v. Texas Bd. of Crim. Justice, 114 F.3d 539, 555 (5th Cir.1997). Although there may be circumstances in which a temporary assignment is the functional equivalent of a demotion, we do not find such circumstances here.
Mylett offered no evidence to support his claim that he was denied a promotion after his assignment to the duty desk. The district court found that the more prestigious and lucrative positions for which Mylett applied either did not exist or were already filled when he applied. Mylett has not refuted these findings. If a position is not available, an employee has no actionable claim for not being promoted. See Mills v. Int‘l Brotherhood of Teamsters, 634 F.2d 282, 285 (5th Cir.1981).
It is well established that Mylett‘s last three claimed injuries—oppressive change of hours, denial of particular shifts, and humiliation (including countermanding Mylett‘s orders in front of his subordinates and characterizing him as a liar)—are not adverse employment actions. See, e.g., Benningfield, 157 F.3d at 377 (holding that changes in work hours, denials of requested shifts, accusations of theft and sabotage, and undermining an employee‘s performance by preventing people from speaking to her are not adverse employment actions); Webb v. Cardiothoracic Surgery Assocs. of N. Tex., 139 F.3d 532, 540 (5th Cir.1998) (holding that rude and uncivil treatment is not an adverse employment action).
Mylett‘s argument that the sum of these actions violate Title VII and § 1983 also fails. A “campaign of retaliatory harassment” is actionable only where it constitutes “a constructive adverse employment action.” Colson v. Grohman, 174 F.3d 498, 514 (5th Cir.1999) (citing Sharp, 164 F.3d at 934 as an example of a constructive demotion). We find that these actions, even in the aggregate, do not constitute an adverse employment action. Cf. Benningfield, 157 F.3d at 377.
Mylett did not suffer an adverse employment action. He therefore failed to make a prima facie case of discrimination or retaliation under Title VII or § 1983. The district court‘s order granting summary judgment is therefore AFFIRMED.