United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 4, 2004
Charles R. Fulbruge III
Clerk
No. 03-40774
Summary Calendar
STEPHEN MYLETT,
Plaintiff-Appellant,
versus
CITY OF CORPUS CHRISTI; PETE ALVAREZ, Chief of Police,
Individually and in His Official Capacity
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. C-02-CV-239
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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, 42 U.S.C. § 2000e et seq., and 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this opinion should not be published and is not precedent except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.
No. 03-40774
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U.S.C. § 1983.2 We review an order granting summary judgment de
novo. Pratt v. City of Houston, 247 F.3d 601, 605-06 (5th Cir.
2001). Summary judgment is appropriate when “there is no genuine
issue as to any material fact and . . . the moving party is
entitled to judgment as a matter of law.” FED. R. CIV. P. 56(c).
For the reasons that follow, we affirm the district court’s
judgment.
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 (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,
2
Mylett also sued under 42 U.S.C. § 1981 and the Texas
Commission on Human Rights Act, but he does not appeal the
district court’s grant of summary judgment on those claims. See
Hadnot v. Bay, Ltd., 344 F.3d 474, 476 n.4 (5th Cir. 2003)
(holding that claims not briefed on appeal are deemed waived).
No. 03-40774
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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 legitimate,
nondiscriminatory reason for its actions. See Pratt, 247 F.2d at
606. If the defendant presents such a reason, the plaintiff must
offer evidence that the proffered reason is a pretext for
discrimination or retaliation. See id.
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. & Mem.
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
3
We therefore need not address whether Mylett offered any
evidence of discrimination or retaliation. We also do not
address Alvarez’s argument that he is entitled to qualified
immunity, as the district court did not address it, Alvarez did
not designate it as an issue on cross-appeal, and it is not
No. 03-40774
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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 mis-
characterized 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.
necessary to our holding.
4
The definition of an adverse employment action may be
broader under § 1983 than it is under Title VII. See Sharp v.
City of Houston, 164 F.3d 923, 933 n.21 (5th Cir. 1999). Mylett
brought claims under both statutes. As we find that Mylett faced
no adverse employment action under even the broadest definition
of the term, we need not differentiate between the definitions
here.
No. 03-40774
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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 at 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.
Formal reprimands may constitute adverse employment
actions,7 but, absent evidence that they are “anything more than
mere criticisms,” verbal reprimands do not. Id. at 377 (finding
that accusations of stealing criminal history records and
attempting to sabotage the fingerprint identification system were
“mere accusations” and not adverse employment actions under §
1983). We find that Mylett’s reprimands, including an email
Alvarez sent to the division that was critical of Mylett’s
performance, constituted criticism, not formal reprimands, so
Mylett has not shown an adverse employment action.
5
To the extent Mylett’s claimed “refusal to promote”
relates to the denial of an official promotion ceremony with his
family in attendance, it is clearly not an adverse employment
action.
6
Offering no evidence to contradict the district court’s
finding, Mylett avers that the promotion was “made retroactive in
pay only and for an insufficient period.” Absent reference to
any evidence in the record, this assertion is entirely
unsupported, and we adhere to the district court’s finding. See
Callon, 351 F.3d at 207 n.1.
7
Although formal reprimands may not be adverse employment
actions under Title VII, they qualify under § 1983. See Sharp,
164 F.3d at 933 n.21.
No. 03-40774
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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
No. 03-40774
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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.
Cardiotoracic 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.