United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 8, 2005
Charles R. Fulbruge III
Clerk
No. 04-30951
Summary Calendar
STEVY Q. GREENE
Plaintiff - Appellant
v.
DAIMLERCHRYSLER SERVICES OF NORTH AMERICA
Defendant - Appellee
Appeal from the United States District Court
for the Eastern District of Louisiana
No. 02:03-CV-1058T
Before KING, Chief Judge, and HIGGINBOTHAM and PRADO, Circuit
Judges.
PER CURIAM:*
Plaintiff-Appellant appeals the district court’s grant of
summary judgment in favor of Defendant-Appellee in this Title VII
retaliation action. For the following reasons, we AFFIRM.
I. BACKGROUND
Plaintiff-Appellant Stevy Greene, an African-American male,
*
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that this opinion should not be published and is not precedent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.
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began working for Defendant-Appellee DaimlerChrysler Services of
North America (“DCS”) in October 1996 as a contract worker. In
August 1997, Greene began working for DCS in its New Orleans Zone
office in an entry-level position in the customer service
(collections) department. In early 2000, DCS initiated “Project
Agility,” a company-wide reorganization of its customer service
functions. During this process, the customer service functions
were removed from twenty-six Zone offices across the country, and
they were consolidated into four customer service centers. Those
centers were located in Troy, Michigan; Dallas, Texas;
Philadelphia, Pennsylvania; and Kansas City, Kansas. The New
Orleans Zone was assigned to the Kansas City Customer Service
Center. The New Orleans employees were given notice of the
impending move, which was scheduled for June 2002, and were
advised that their jobs in New Orleans would no longer exist
after the effective date of the move. All employees, including
Greene, were informed that they would have the option to transfer
to Kansas City in their current positions, attempt to secure
other positions within DCS through the normal posting process, or
accept a lay off and the standard lay-off package.
According to George Tallant, Zone Manager of the New Orleans
Zone, after Greene’s March 7, 2002 meeting with the Kansas City
management, Greene said that he would rather move to Dallas but
that he would accept the transfer to Kansas City if he was unable
to secure another position within the company prior to his
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transfer date.1 Greene attempted to secure a position in Dallas,
but his efforts were unsuccessful. On April 6, 2002, Greene
received $8,506.40 in relocation benefits from DCS. On April 17,
2002, Greene sent an email to Arnita Wilson in DCS’s human
resources department, stating: “If you are not able to relocate
me to Dallas, I will still report to Kansas City on April 22,
2002 and give 100 percent.”
On May 30, 2002, Greene sent an email to Tom McAlear, an
operations manager for DCS, complaining that his requests for
promotion and transfer to Dallas had been denied. That email
made references to equality and unfair treatment but did not
expressly indicate that Greene had been discriminated against
because of his race.2 On June 5, 2002, Greene spoke with Wilson
1
Thus, Greene declined the severance package.
2
The email stated, in relevant part:
It has been brought to my attention that upon recent
positions in which I submitted for within the company,
were rejected. [sic] The reason being, I was told that
I am under-qualified for the positions. I know that I
am indeed qualified, maybe over-qualified but certainly
not under. It appears that other people in my
department are being promoted or transferred without a
degree and I am being overlooked for whatever reasons.
I feel that certain people are getting preferential
treatment/perks. . . .
I have always believed and still believe that
[DSCS] is an equal opportunity employer, however I
believe that I am not receiving a fair opportunity when
it comes to promotions. I am not looking for any
special favors or handouts. . . .
I believe values and equality are the backbone of
any corporate culture. It is the essence of a
company’s philosophy for achieving success. Values
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on the telephone, allegedly complaining of racial
discrimination.3
Greene was ultimately unable to acquire a position with DCS
in Dallas. He relocated to Kansas City, effective June 7, 2002.4
In Kansas City, he maintained the same entry-level position and
the same level of pay that he had in New Orleans. Shortly after
moving to Kansas City, he took a leave of absence. On June 29,
2002, Greene allegedly suffered an anxiety attack, and he has
been on total, and then partial, disability since that time.5
On February 3, 2003, Greene filed a charge with the Equal
Employment Opportunity Commission (“EEOC”).6 He alleged that he
had been transferred to Kansas City in retaliation for his
complaints of racial discrimination and that the transfer
provide a sense of common direction for all employees
and equality is colorblind.
3
Wilson denies that Greene alleged racial discrimination
in that conversation.
4
Although Greene’s last day scheduled to be in New
Orleans was April 15, 2002, DCS extended his relocation date to
April 22, 2002, and then June 7, 2002, to accommodate his
business school schedule and his attempts to find a position in
the Dallas office.
5
Relying on an affidavit from Pamela Morgan, a human
resources consultant with DCS, the district court stated that
Greene resigned from his employment with DCS on June 19, 2003.
6
Greene originally filed a charge with the EEOC on June
7, 2002, the effective date of his transfer to Kansas City. The
EEOC issued a right-to-sue letter on December 4, 2002. However,
this charge was amended to include Greene’s retaliation claim on
February 3, 2003.
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constituted a demotion. On April 11, 2003, Greene filed this
lawsuit in the United States District Court for the Eastern
District of Louisiana, alleging retaliation in violation of Title
VII. On August 18, 2004, the district court granted summary
judgment in favor of DCS. Greene timely filed the instant
appeal.
II. DISCUSSION
We review a district court’s grant of summary judgment de
novo, applying the same standard as the district court. Fierros
v. Tex. Dep’t of Health, 274 F.3d 187, 190 (5th Cir. 2001).
Summary judgment is proper when the record, viewed in the light
most favorable to the nonmoving party, demonstrates that no
genuine issue of material fact exists and that the movant is
entitled to judgment as a matter of law. See FED. R. CIV. P.
56(c); see also Blow v. City of San Antonio, 236 F.3d 293, 296
(5th Cir. 2001). “The moving party is entitled to a judgment as
a matter of law [if] the nonmoving party has failed to make a
sufficient showing on an essential element of her case with
respect to which she has the burden of proof.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks
omitted).
DCS argues, and Greene does not dispute, that Greene’s
claims for retaliation are governed by the McDonnell Douglas
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burden-shifting framework.7 See McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802 (1973); Fierros, 274 F.3d at 191-92. Under
this framework, “[a] Title VII plaintiff bears the initial burden
to prove a prima facie case of discrimination by a preponderance
of the evidence.” LaPierre v. Benson Nissan, Inc., 86 F.3d 444,
448 (5th Cir. 1996) (citing McDonnell Douglas, 411 U.S. at 802);
see also Fierros, 274 F.3d at 191-92 (noting that “the plaintiff
carries the initial burden of establishing a prima facie case of
retaliation”). A plaintiff may satisfy this burden by
demonstrating that: (1) he engaged in an activity protected by
Title VII; (2) an adverse employment action was taken against
him; and (3) a causal link existed between the protected activity
and the adverse employment action. Fierros, 274 F.3d at 191;
Long v. Eastfield Coll., 88 F.3d 300, 304 (5th Cir. 1996).
The plaintiff’s prima facie showing of retaliation
establishes an inference of the employer’s impermissible
retaliatory motive. Fierros, 274 F.3d at 191. The burden then
shifts to the employer to produce a legitimate, nonretaliatory
reason for the adverse employment action. Id. Once the employer
produces evidence of such a reason, the plaintiff has the
ultimate burden of proving that the proffered reason is merely a
pretext for retaliation, which may be accomplished by
7
Accordingly, the court need not consider whether the
Supreme Court’s decision in Desert Palace, Inc. v. Costa, 539
U.S. 90 (2003), or this court’s decision in Rachid v. Jack in the
Box, Inc., 376 F.3d 305 (5th Cir. 2004), affect this case.
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demonstrating that the adverse employment decision would not have
occurred but for the protected activity. Long, 88 F.3d at 305
n.4. The jury may infer the existence of but-for causation from
the combination of the plaintiff’s evidence establishing the
prima facie case of retaliation and the plaintiff’s evidence that
the reasons given by the employer are merely pretextual. Mota v.
Univ. of Tex. Houston Health Sci. Ctr., 261 F.3d 512, 519-20 (5th
Cir. 2001).
The district court granted summary judgment in favor of DCS
after finding that Greene failed to establish a prima facie case
of retaliation. With respect to the first element, the court
noted that Greene alleged two instances of protected activity:
the May 30 email to McAlear and the June 5 telephone conversation
with Wilson. The district court found that Greene’s email was
not a protected activity because it made only vague references to
discrimination. However, the court concluded that whether
Greene’s comments during the telephone conference with Wilson
constituted protected activity was a question of fact. The court
further found that Greene had failed to establish the second
element of his prima facie case because his transfer to Kansas
City was not an adverse employment action. Finally, the court
determined that Greene failed to establish the third element as
well because he did not show a causal connection between his
allegedly protected activity and his transfer.
Because we agree with the district court that Greene’s
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transfer to Kansas City did not constitute an adverse employment
action under Title VII, we find that Greene failed to establish a
prima facie case of retaliation, and we need not address the
district court’s conclusions with respect to the first and third
elements. This court consistently has held that to present a
prima facie case for retaliation, a plaintiff must show that the
employer took an “adverse employment action” against the
plaintiff. See, e.g., Pegram v. Honeywell, Inc., 361 F.3d 272,
281-82 (5th Cir. 2004). In this circuit, only “ultimate
employment decisions” qualify as the adverse employment actions
necessary to establish a prima facie case of retaliation.
Mattern v. Eastman Kodak Co., 104 F.3d 702, 707 (5th Cir. 1997);
see also Dollis v. Rubin, 77 F.3d 777, 781-82 (5th Cir. 1995)
(per curiam). Ultimate employment decisions include hiring,
granting leave, discharging, promoting, and compensating.
Mattern, 104 F.3d at 707; see also Hernandez v. Crawford Bldg.
Material Co., 321 F.3d 528, 531-32 & n.2 (5th Cir. 2003) (per
curiam). Demotions are also considered adverse employment
actions. See Sharp v. City of Houston, 164 F.3d 923, 933 n.20
(5th Cir. 1999). Furthermore, a change in one’s employment
position need not result in a reduction in pay in order to be
considered a demotion. See id. at 933; Forsyth v. City of
Dallas, 91 F.3d 769, 774-76 (5th Cir. 1996). Rather, an
employer’s decision to change an employee’s job position may
constitute a demotion if the new position is objectively worse.
-8-
See Sharp, 164 F.3d at 933 (“To be 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.”); see also Pegram, 361 F.3d
at 283 (“Circuit precedent establishes that in cases where the
evidence produces no objective showing of a loss in compensation,
duties, or benefits, but rather solely establishes that a
plaintiff was transferred from a prestigious and desirable
position to another position, that evidence is insufficient to
establish an adverse employment action.”).
Greene argues that his transfer to Kansas City was a
demotion and therefore an ultimate employment action. We
disagree. Greene’s job title and pay were the same in both
Kansas City and New Orleans. Furthermore, Greene produced no
evidence that his job in Kansas City was objectively worse than
his position in New Orleans. To support his argument, Greene
points only to his own affidavit, which briefly describes the
differences between his duties in New Orleans and Kansas City.
Greene avers that in New Orleans he worked on overdue accounts up
to and through repossession. However, in Kansas City, he would
work on accounts that were only thirty to forty days past due,
and then he would forward the accounts on to others. Although
Greene claims this would be a step back to an entry level
position, he admits that his job in New Orleans was an entry
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level position. Moreover, Greene never refuted DCS’s evidence
that despite the differences, his duties in Kansas City were the
same as they had been in New Orleans. For example, Jeff Andrew
Glazer, manager of the New Orleans Customer Service Department,
testified that Greene would not experience a reduction in his
duties or responsibilities after transferring to Kansas City.
Glazer stated that even if Greene were no longer to handle
accounts up to and through repossession, his responsibility level
would remain the same because he would be handling more accounts
and his duty still would be to cure delinquent accounts. Thus,
Greene failed to show that his transfer was a demotion, and
therefore, he did not prove that he suffered an adverse
employment decision. Consequently, Greene failed to establish a
prima facie case of retaliation, and the district court correctly
granted summary judgment in favor of DCS.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the
district court.
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