Wilson v. City of San Antonio

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 01-50215
(Summary Calendar)

MARA WILSON,

Plaintiffs-Appellees,

v.

CITY OF SAN ANTONIO,

Defendant-Appellant,

Appeal from the United States District Court
for the Western District of Texas (San Antonio)
(SA-00-CA-338)

August 20, 2001

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Plaintiff-Appellant Mara Wilson appeals the district court’s

grant of summary judgment in favor of Defendant-Appellee, the City

of San Antonio (“City”). Wilson is a female African-American

police officer with the San Antonio Police Department (“SAPD”).

She brought suit against the City, alleging race and sex

discrimination under Title VII of the Civil Rights Act of 1964, 42

*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
U.S.C. § 2000e (“Title VII”), and the Texas Commission on Human

Rights Act, TEX. LABOR CODE ANN. § 21.051 (“TCHRA”), when she was

neither interviewed to fill an opening in SAPD’s K-9 (dog handling)

unit for which she had applied nor in fact transferred to that

unit. The district court granted the City’s motion for summary

judgment, concluding that Wilson failed (1) to show the presence of

one of the elements of her prima facie case for discrimination,

namely, that she had suffered an adverse employment decision made

by the City, and (2) to establish the existence of a genuine issue

of material fact as to whether the City’s proffered legitimate,

nondiscriminatory reason for its decision was pretextual. Wilson

contends that the district court erred when it made these

determinations, insisting that it did not view the evidence in the

light most favorable to her as the non-moving party. We have now

reviewed the record in such a favorable light, and we are satisfied

that the City’s decisions not to interview Wilson for the K-9 unit

position and not to transfer her to the unit do not constitute

adverse employment decisions. Therefore, we affirm the district

court’s grant of summary judgment dismissing Wilson’s action.

I. Facts and Proceedings

Wilson has been employed by the SAPD as a patrol officer since

1986. In 1994, Wilson requested and was granted a transfer to the

K-9 unit, a division of the SAPD’s Special Operations Unit (“SOU”),

where she was selected to work as a narcotics dog handler.

2
 Things did not go smoothly for Wilson in the K-9 unit. Her

first dog, Laika, grew aggressive shortly after Wilson assumed

active duty with her. The record is indeterminate as to whether

Laika’s aggressiveness was at all attributable to Wilson.

Nevertheless, after biting a police officer, Laika had to be

replaced with a second dog, Herta. In addition, Wilson repeatedly

requested changes in her hours, even though the position for which

she had applied and was selected had been clearly posted as a 10

a.m. to 6 p.m. shift. Wilson states that she requested the change

in shift both for the benefit of having a partner to work with (she

was on duty as the only K-9 narcotics dog handler during the

daytime shift and believed that she would develop greater skill if

she had a partner to work with), and because she had noticed that

more calls for a narcotics dog handler came in the afternoon,

leaving her and Herta idle in the mornings. To her growing

frustration, Wilson’s shift change and partnering requests were

repeatedly denied. Last, both Wilson and her supervisors realized

that she was receiving fewer and fewer calls from other officers to

perform searches with Herta, even when Wilson was on duty.

Deposition testimony of her supervisors suggests that officers had

lost confidence in Wilson’s and Herta’s abilities to find drugs,

that Wilson treated Herta like a pet, that Wilson did not guide

Herta through the searches properly, and that the resulting

cancellations of requests for her assistance caused an increase in

the workload of the other narcotics dog handler in the K-9 Unit.

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 In her deposition, Wilson casts these events in a different

light. She maintains that officers would ransack search sites

before calling for her and Herta, intentionally sabotaging her

search efforts. Her central theme seems to be that SAPD’s failure

to partner her with another officer or change her shift, her fellow

officers’ sabotage of the search sites, and their cancellation of

calls for her and Herta to search for drugs, were reflections of

the supervisors’ and other officers’ discriminatory attitudes

towards her.

Finally, in 1997, when she and her dog failed the required

recertification, Wilson was asked to transfer from the K-9 unit.

She involuntarily transferred to the Street Crimes Arrest Team,

another unit in the SOU, where she has remained as a patrol officer

since May 1997. Following this transfer, she filed a charge with

the Equal Employment Opportunity Commission (EEOC) alleging race

and sex discrimination, and was issued a right-to-sue letter;

however, her attorney failed to bring suit timely.

In August 1998, Wilson again applied for a position as a

narcotics dog handler in the K-9 unit, this time under a new

supervisor, Sgt. Paul Rangel. Nineteen other officers applied as

well, including three other females. Sgt. Rangel screened

applicants using uniform criteria such as prior work history,

recommendations from supervisors, absenteeism, and previous

complaints against the applicant. He also conducted an independent

investigation into Wilson’s previous work history in the K-9 unit

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before deciding not to grant her an interview. Out of the twenty

applicants, Sgt. Rangel invited seven for interviews, three of whom

were the other females (two of those three eventually withdrew

their applications for personal reasons before being interviewed).

The applicant ultimately selected for the position was neither

African-American nor female.

In March of 1999, Wilson again filed a charge of

discrimination with the EEOC and another with the Texas Commission

on Human Rights; and in September of 1999, the EEOC issued Wilson

a second right-to-sue letter. This time she timely filed suits in

state district and county courts, alleging violations of Title VII

and the TCHRA, and intentional infliction of emotional distress,

alleging that she was discriminated against on the basis of her

race and sex in 1998 when she was neither granted an interview for

the K-9 unit position nor transferred back to that unit. The City

removed the cases to federal district court, where they were

consolidated. The City filed a motion for summary judgment on all

claims except those for emotional distress. In January 2001, the

district court granted the City’s motion, concluding that the

decision not to interview or otherwise consider Wilson for the K-9

unit position constituted neither an ultimate employment decision

nor an adverse employment action. Although it thus found that

Wilson had failed to establish her prima facie case for

discrimination, the district court nevertheless proceeded to

analyze both the legitimate, nondiscriminatory reasons proffered by

5
the City for its decision, and Wilson’s contentions that those

reasons were pretextual. The district court ruled in the City’s

favor on these issues as well, stating that,

Wilson has failed to present summary judgment evidence
that raises a genuine issue of material fact as to
whether the stated reason was false and a reasonable
inference that Wilson’s race and sex were a determinative
factor in any adverse employment decision.

Wilson timely appealed the grant of the summary judgment in

favor of the City.

II. Analysis

A. Standard of Review

We review a grant of summary judgment de novo, applying

the same standard as the district court.1 A motion for

summary judgment is properly granted only if there is no

genuine issue as to any material fact.2 An issue is material

if its resolution could affect the outcome of the action.3 In

deciding whether a fact issue has been created, we must view

the facts and the inferences to be drawn therefrom in the

light most favorable to the nonmoving party.4

The standard for summary judgment mirrors that for

1
Morris v. Covan World Wide Moving, Inc., 144 F.3d 377, 380
(5th Cir. 1998).
2
Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986).
3
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
4
See Olabisiomotosho v. City of Houston, 185 F.3d 521, 525
(5th Cir. 1999).

6
judgment as a matter of law.5 Thus, the court must review all

of the evidence in the record, but make no credibility

determinations or weigh any evidence.6 In reviewing all the

evidence, the court must disregard all evidence favorable to

the moving party that the jury is not required to believe, and

should give credence to the evidence favoring the nonmoving

party as well as that evidence supporting the moving party

that is uncontradicted and unimpeached.7

B. Plaintiff’s Prima Facie Case

As noted, Wilson asserted violations of both Title VII

and the TCHRA. It is well settled that in substance the law

governing claims under the TCHRA and Title VII is identical,8

so we may decide the claims under both statutes

simultaneously.

To survive defendant’s motion for summary judgment in a

Title VII discrimination suit, the plaintiff must establish,

by a preponderance of the evidence, a prima facie case of

discrimination.9 This requires the plaintiff to present

5
Celotex Corp., 477 U.S. at 323.
6
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133,
150 (2000).
7
Id. at 151.
8
Shackelford v. Deloitte & Touche, LLP, 190 F.3d 398, 404
n.2.
9
Id. at 404 (citing McDonnell Douglas Corp. v. Green, 411
U.S. 792, 801-03 (1973)).

7
evidence that (1) she is a member of a protected class; (2)

she was qualified for the position; (3) she was subjected to

an adverse employment action; and (4) someone outside the

protected class was chosen for the position in question.10

If the plaintiff successfully establishes the prima facie

case, a presumption of discrimination arises, which the

defendant may then attempt to rebut by presenting, through the

introduction of admissible evidence, one or more legitimate,

nondiscriminatory reasons for the acts complained of by the

plaintiff.11 If the defendant is able to meet this burden, it

shifts back to the plaintiff to prove that the defendant’s

proffered reason is pretextual.12

In the instant case, Wilson fails to establish the third

element of her prima facie case, that she was subjected to an

adverse employment action. Wilson contends that she suffered

such adverse treatment in 1998 when she was not granted an

interview for the open K-9 unit position or transferred to the

unit. In its order granting the City’s motion for summary

judgement, the district court, citing Dollis v. Rubin,13

10
Id. at 404 (citing Ward v. Bechtel Corp., 102 F.3d 199,202
(5th Cir. 1997).
11
Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248,
254 (1981); Meinecke v. H & R Block, 66 F.3d 77, 83 (5th Cir.
1995).
12
Meinecke, 66 F.3d at 83.
13
77 F.3d 777 (5th Cir. 1995).

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correctly observed that Title VII addresses only adverse

employment actions, and does not “address every decision made

by employers that arguably might have some tangential effect

upon ultimate decisions.”14 Although we have implied in dicta

that Title VII’s proscription of employment discrimination may

encompass “vague harms” that the statute’s retaliation

provision does not,15 we have looked to the Supreme Court’s

language of Burlington Indus., Inc. v. Ellerth,16 even in

discrimination cases, for guidance as to whether the

employer’s decision or conduct was actionable.17

Without more, a failure to grant an interview for a

transfer from one unit in the SOU to another, or a failure to

transfer Wilson to that unit without an interview, simply do

not rise to the level of “tangible employment actions”

envisioned by the Burlington Court. Wilson nevertheless

insists that transfer from the Street Crimes Arrest Team to

the K-9 unit would have been more than a lateral transfer,

14
Id. at 781-82.
15
Shackelford v. Deloitte & Touche, LLP 190 F.3d 398, 406 (5th
Cir. 1999) (citing Mattern v. Eastman Kodak Co., 104 F.3d 702, 709
(5th Cir. 1997).
16
524 U.S. 742 (1998).
17
See, e.g., Shackelford v. Deloitte & Touche, LLP, 190 F.3d
398, 407 (5th Cir. 1999) (citing Burlington, 524 U.S. at 761) (“[A]
tangible employment action constitutes a significant change in
employment status, such as hiring, firing, failing to promote,
reassignment with significantly different responsibilities, or a
decision causing a significant change in benefits.”).

9
referring us generally to her own deposition and those of

three other officers for support of the proposition. Our

review of these depositions convinces us that she alone

contends that the move would be more than a lateral transfer.

In her brief, Wilson suggests that there is greater prestige

associated with the K-9 unit, that it requires specialized

training, that a “shift differential” (that is, additional

compensation for working evening hours) is available for those

who work in that unit, and that there would be greater

compensation available as well, if only in the form of an

increased budget for K-9 uniforms, equipment, maintenance, and

a take-home vehicle.

As we have noted in the context of a § 1983 claim,18 the

mere fact that one unit of a department may be viewed as more

prestigious than another will not suffice to render a transfer

(or, by analogy, a denial of transfer) an adverse employment

action. There must also be some evidence to suggest that a

18
In Sharp v. City of Houston, 164 F.3d 923, 933 n.21 (5th
Cir. 1999), we noted that “[t]he definition of ‘adverse employment
action[]’ . . . may be different under title VII from its
definition under § 1983,” but we also cited to the Burlington
“tangible employment action” language referenced above to establish
that a demotion is an “adverse employment action” under either
rubric. If analogizing between a refusal to transfer an employee
to a more prestigious unit and a demotion is appropriate, then the
use of § 1983 jurisprudence is appropriate here; and even if the
analogy fails, the § 1983 standard is arguably more relaxed and
thus more beneficial to the plaintiff. Yet even under the more
relaxed standard, the alleged misconduct here fails to rise to the
level of an adverse employment action.

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transfer to the less desirable position(or denial of transfer

to the desired position) is generally considered to be a

demotion or punishment.19

Similarly, in Dollis v. Rubin,20 we decided that denying

the plaintiff’s attendance at a training seminar did not

constitute an adverse employment action.21 Even if here such

an employment action were deemed adverse, deposition testimony

of Wilson’s supervising officers establishes that many of the

units in the SOU require specialized training: That feature

is not unique to the K-9 unit.

Last, on the issue of compensation, we note Wilson’s own

deposition testimony that she was receiving shift differential

in the Street Crimes Arrest Team assignment, thus calling into

question her contention that the availability of shift

differential in the K-9 unit would have bettered her position.

Moreover, the additional budget items to which she refers

merely offset additional expenses. For example, the K-9

maintenance allowance would offset the cost of maintaining the

dog, and the additional allowance for the K-9 unit uniform

would offset the cost of special clothing and gear. And even

though the assignment of a take-home vehicle could conceivably

19
Serna v. City of San Antonio, 244 F.3d 479, 484 (5th Cir.
2001).
20
77 F.3d 777 (5th Cir. 1995).
21
Id. at 779, 782.

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constitute a tangible benefit, taken alone, denying Wilson an

interview for, or transfer to, a job that happens to include

having such a vehicle at her disposal is not the kind of

employment differential protected by Title VII.

In sum, the decision not to interview or transfer Wilson

resulted only in the denial of a job to which she subjectively

attributed greater prestige, not one from the denial of which

she experienced significant economic adversity, if indeed she

suffered any at all. As such, Wilson suffered no actionable

adverse employment action under Title VII, without which she

fails to establish her prima facie case of discrimination.

And, absent a prima facie case, our enquiry is at an end, and

we can affirm the district court’s grant of the City’s motion

for summary judgment without addressing proffered reasons or

pretext.

III. Conclusion

Our plenary review of the record, viewing all facts in

the light most favorable to Wilson, satisfies us that the

district court did not err in granting the City’s motion for

summary judgment. We agree that Wilson failed to establish

that she was subjected to an adverse employment action, or

even that a genuine issue of material fact exists as to that

essential element of her prima facie case of race or sex

discrimination in her employment. This being the case, we

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need not inquire further. The judgment of the district court

is, therefore,

AFFIRMED.

13