[PUBLISH]
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IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MAR 26, 2001
THOMAS K. KAHN
CLERK
No. 00-10305
D. C. Docket No. 98-08315-CV-FAM
MACK DAVIS,
Plaintiff-Appellant,
versus
TOWN OF LAKE PARK, FLORIDA,
a Florida municipal corporation,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Florida
(March 26, 2001)
Before CARNES and MARCUS, Circuit Judges, and HAND*, District Judge.
MARCUS, Circuit Judge:
*
Honorable W.B. Hand, U.S. District Judge for the Southern District of Alabama, sitting
by designation.
Plaintiff Mack Davis appeals the district court’s grant of Defendant Town of
Lake Park’s motion for judgment as a matter of law on his Title VII race
discrimination claim. Davis, an African-American police officer in the Town,
alleges that he suffered adverse employment action based on race in the form of
two corrective job performance memos placed in his personnel file and two
instances where he was temporarily removed as the designated officer-in-charge
(“OIC”). The jury returned a verdict for Davis and awarded $1.00 in nominal
damages. The district court, however, set aside the verdict and granted the Town’s
motion for judgment as a matter of law, concluding that no reasonable jury could
have found adverse employment action on this record. Because we agree that
Davis failed to prove the kind of serious, material change to the terms, conditions,
or privileges of his employment required to obtain relief under Title VII’s anti-
discrimination clause, we affirm.
I.
Davis is the only black police officer in Lake Park, a small community near
West Palm Beach, Florida. The department has approximately 20 road patrol
officers, plus three sergeants, two lieutenants, and a chief (Jeffrey Lindskoog). The
district court’s opinion amply sets out the Town’s extensive efforts to bring Davis
into the police force. Davis was hired in November 1992, and remains a police
2
officer there. His performance reviews have been excellent or no worse than
satisfactory, and his supervisors have recommended him for several awards. He
has served many times as one of the department’s Field Training Officers
(“FTOs”), responsible for teaching new officers the rules and regulations of the
department.
In or about January 1996 Davis was selected by his then-shift sergeant,
Patricia Gordon, to serve as OIC in her absence. The OIC is the road patrol officer
who fills in for the shift sergeant when that sergeant has a day off, takes a vacation,
or otherwise is unavailable. The OIC, when acting in that capacity, is to be
accorded the same deference and respect as the sergeant. The OIC designation
carries no additional pay or benefits, and is only temporary. It usually, although
not always, goes to the most senior officer on the shift.
On October 31, 1996, Davis received a memorandum from Lieutenant Jules
Barone entitled “Failure to Follow Department Requirements (S.O.P.).” The
memo discussed Davis’s alleged failure to comply with certain departmental
requirements regarding “turning in paperwork on time and keeping your mailbox
clean.” It continued:
What makes this situation even more unacceptable is your position as
a field training officer. How can you possibly expect trainees under
your direction to follow instructions when you ignore a very basic
aspect of your job. I expect more from you. As a result, any future
3
leave requests will not be granted until all work-related paper work is
turned in or you receive a waiver from your supervisor or me.
Davis did not suffer any repercussions from that memo; indeed, a week later, he
received a performance evaluation -- prepared by Gordon, and approved by Barone
and Chief Lindskoog -- of excellent, and an attendant pay raise.
On December 13, 1996, Gordon elected to designate another officer, Larry
Wood, to serve as OIC while she was away on vacation. Gordon testified that she
had noticed a “slump” in Davis’s performance, and that she felt Davis needed a
break from the additional duties imposed by being both OIC and an FTO. Gordon
later re-designated Davis to serve as OIC. On January 24, 1997, Davis was again
replaced as the designated OIC, this time (according to Davis) based on a decision
by Barone that Davis’s recent performance was deficient. Gordon concurred in
Barone’s decision, and designated an officer named Crowell to be OIC instead.
Nevertheless, since that time, Davis has served as OIC on various occasions,
including at the time of trial.
Meanwhile, on February 5, 1997, Davis received another job performance
memo from Barone. The initial version of that memo was quite harsh in its
criticism of Davis’s recent performance, and identified several specific instances of
unacceptable conduct. The memo was placed in Davis’s personnel file, prompting
Davis to file a union grievance. In response, the department substituted a
4
somewhat softer, revised version of this memo, which stated that Davis’s level of
performance was “unacceptable for any officer, let alone one who is a field training
officer and has served as an OIC.” The memo added that it was meant to serve “as
a warning that performance of a like nature may result in other department
actions.” The revised version replaced the initial version in Davis’s personnel file,
and was put there with the proviso that it would be removed on February 8, 1998,
if the performance problems did not reoccur. The union, notably, did not pursue
the matter further. Although the personnel file produced during discovery still
contained the revised memo, in July 1999 Chief Lindskoog testified at trial --
without contradiction -- that the memo had been removed by that time.
II.
It is undisputed that Davis did not suffer any reduction in salary, loss of
benefits, denial of promotions, workplace reassignment, transfer, or change in
permanent job title as a result of these incidents. Nevertheless, on May 14, 1998,
Davis filed suit against his employer in the Southern District of Florida, alleging
race discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §
2000e-1, et seq., the Florida Civil Rights Act, and 42 U.S.C. § 1981. The case was
originally assigned to U.S. District Judge Federico Moreno, who denied the
Town’s motion for summary judgment. In so doing, Judge Moreno rejected the
5
argument that Davis did not suffer adverse employment action. The case was
subsequently reassigned to U.S. District Judge Donald Middlebrooks.
A jury trial was held on July 26-28, 1999. At trial the Town moved for
judgment as a matter of law at the close of Davis’s case as well as after the close of
the evidence. On both occasions the district court reserved ruling. On July 28, the
jury returned a verdict in favor of Davis, but awarded him only $1.00 in nominal
damages. Before rendering its verdict the jury had submitted to the district judge a
note stating: “[W]e appear to be deadlocked. Can you assist? What do we do
next?” The district judge responded by ordering the jury to deliberate further.
In a lengthy order dated December 22, 1999, the district court granted the
Town’s motion for judgment as a matter of law and thereby set aside the jury’s
verdict. After a detailed discussion of the evolution of the adverse employment
action requirement in Title VII cases, the court concluded that the incidents
complained of by Davis did not, viewed individually or collectively, amount to
adverse action. The district court emphasized that Davis did not suffer any
discipline for these incidents, did not lose any pay or benefits, and continued to
receive excellent or satisfactory performance reviews with attendant increases in
salary. With respect to the February 5, 1997, job performance memo, the court
particularly emphasized that the memo was not a formal reprimand, and that
6
according to Chief Lindskoog it had already been removed from Davis’s personnel
file. In any event, the court wrote, “[m]emoranda of reprimand or counseling that
amount to no more than a mere scolding, without any following disciplinary action,
do not rise to the level of adverse employment actions sufficient to satisfy the
requirements of Title VII.” With respect to the brief removals from the OIC
designation, the district court wrote that “courts have uniformly held that changes
in assignments or work-related duties do not amount to actionable adverse
employment action if unaccompanied by a decrease in salary.” Finally, as an
additional ground for entering judgment in the Town’s favor, the court concluded
that Davis had failed to prove that he was treated differently than any similarly-
situated white employees, and thus failed on that ground as well to establish a
prima facie case under Title VII. This appeal followed.1
III.
1
Davis argues that the law of the case doctrine required Judge Middlebrooks to adhere to
Judge Moreno’s earlier ruling at the summary judgment stage that the issues of adverse
employment action and prima facie case were questions of fact for the jury. Davis’s argument is
plainly incorrect. Law of the case does not apply in this situation because Judge Middlebrooks
based his post-trial order on a different record than did Judge Moreno when addressing summary
judgment. See United States v. Williams, 728 F.2d 1402, 1406 (11th Cir. 1984) (law of the case
doctrine “is flexible, and a court’s previous rulings may be reconsidered as long as the case
remains within the jurisdiction of the district court”); United States v. Horton, 622 F.2d 144, 148
(5th Cir. 1980) (holding that the trial court properly reconsidered motion for summary judgment
because the production of reports, admissions, affidavits, and other record material during the
course of proceedings had clarified and resolved questions of material fact on several issues).
7
The standard of review is well-settled. As set forth in Tidwell v. Carter
Products, 135 F.3d 1422 (11th Cir. 1998):
A district court’s denial of a defendant’s motion for judgment
as a matter of law is reviewed de novo, entailing the application of the
same standards used by the district court. Dade County v. Alvarez,
124 F.3d 1380, 1383 (11th Cir. 1997). Those standards require the
consideration of “whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so
one-sided that one party must prevail as a matter of law.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S. Ct. 2505, 2512, 91
L. Ed. 2d 202 (1986). All evidence and inferences are considered in a
light most favorable to the nonmoving party. Carter v. City of Miami,
870 F.2d 578, 581 (11th Cir. 1989).
If the facts and inferences point overwhelmingly in
favor of one party, such that reasonable people could not
arrive at a contrary verdict, then the motion was properly
granted. Conversely, if there is substantial evidence
opposed to the motion such that reasonable people, in the
exercise of impartial judgment, might reach differing
conclusions, then such a motion was due to be denied and
the case was properly submitted to the jury.
Id. (footnotes omitted). The nonmoving party must provide more than
a mere scintilla of evidence to survive a motion for judgment as a
matter of law; “there must be a substantial conflict in evidence to
support a jury question.” Id. Accordingly, we must determine
whether reasonable jurors could have concluded as this jury did based
on the presented evidence. Quick v. Peoples Bank, 993 F.2d 793, 797
(11th Cir. 1993).
Id. at 1425. We review the district court’s entry of judgment as a matter of law
against these familiar standards.
IV.
8
The primary issue in this appeal is whether the district court erred by finding
that the alleged adverse employment actions, viewed individually or collectively,
were insufficient as a matter of law to support relief under Title VII’s anti-
discrimination clause. Davis argues that, viewing the evidence in the light most
favorable to him, a reasonable jury could have found that the incidents he suffered
(the two memos regarding his inadequate performance and the two removals from
the OIC designation) constituted adverse employment action sufficient to support
relief under Title VII. He contends that the memos are tantamount to reprimands,
which he asserts are always deemed actionable under Title VII. Moreover, he
contends, the presence of the revised memo in his personnel file jeopardizes his
career prospects as a police officer. With respect to the OIC designation, Davis
contends that the two occasions on which he was removed constituted
“demotions,” and in any event are actionable because they deprived him of
supervisory experience that could have yielded future benefits. The Town disputes
all of these propositions, and repeatedly emphasizes that at no point did Davis
suffer any formal discipline or economic injury.
The relevant provision of Title VII prohibits discrimination with respect to
an employee’s “compensation, terms, conditions, or privileges of employment.”
42 U.S.C. § 2000e-2(a). Courts have uniformly read this language to require a
9
plaintiff suing under § 2000e-2(a) to establish, as part of his prima facie case, that
he suffered so-called “adverse employment action.” See Merriweather v. Alabama
Dept. of Pub. Safety, 17 F. Supp. 2d 1260, 1274 (M.D. Ala. 1998) (a “term or
condition of employment may be said to have been affected if there is a
‘demonstrable adverse impact . . .’”), aff’d, 199 F.3d 443 (11th Cir. 1999); see also
Allen v. Michigan Dep’t of Corr., 165 F.3d 405, 410 (6th Cir. 1999) (“In order to
set forth a claim of racial discrimination, a plaintiff must show that he has suffered
an adverse employment action[.]”); Harlston v. McDonnell Douglas Corp., 37 F.3d
379, 382 (8th Cir. 1994) (finding that plaintiff failed to prove “the adverse conduct
required to make a prima facie case”). The adverse action requirement is not
unique to Title VII’s anti-discrimination clause. It has been imposed in cases
under Title VII’s retaliation clause, even though that provision is not limited to
unlawful conduct with respect to the “terms, conditions, or privileges of
employment.” See Bass v. Board of County Comm’ns, No. 99-10579, slip op. at
1477-78 (11th Cir. Feb. 21, 2001); Gupta v. Florida Bd. of Regents, 212 F.3d 571,
587 (11th Cir. 2000), cert. denied, 121 S. Ct. 772 (2001); Wideman v. Wal-Mart
Stores, Inc., 141 F.3d 1453, 1456 (11th Cir. 1998); Wu v. Thomas, 996 F.2d 271,
273-74 (11th Cir. 1993). Adverse action is also a requirement in other
employment discrimination cases. See Doe v. Dekalb County Sch. Dist., 145 F.3d
10
1441, 1452 (11th Cir. 1998) (noting in ADA case the “requirement that a plaintiff
[] show, as part of his prima facie case, that he has suffered an adverse employment
action”); McCabe v. Sharrett, 12 F.3d 1558, 1563 (11th Cir. 1994) (“For a public
employee to establish that an employment action has infringed a constitutional
right the employee must also demonstrate that he or she has suffered some sort of
adverse employment action . . . .”).
We have never adopted a bright-line test for what kind of effect on the
plaintiff’s “terms, conditions, or privileges” of employment the alleged
discrimination must have for it to be actionable; nor would such a rigid test be
proper. See, e.g., Gupta, 212 F.3d at 586 (“Whether an action is sufficient to
constitute an adverse employment action for purposes of a retaliation claim must
be determined on a case-by-case basis.”). It is clear, however, that not all conduct
by an employer negatively affecting an employee constitutes adverse employment
action. See Wideman, 141 F.3d at 1456 (“we do not doubt that there is some
threshold level of substantiality that must be met for unlawful discrimination to be
cognizable”); Wu, 996 F.2d at 273-74 (although we “have never defined what this
general phrase [adverse employment action] means,” none of our prior decisions
“establish the proposition that every unkind act, even those without economic
consequences, can violate Title VII”); Merriweather, 17 F. Supp. 2d at 1274 (a
11
“term or condition of employment may be said to have been affected if there is a
‘demonstrable adverse impact . . .’”). This limitation is consistent with the basic
principle that “Title VII[ ] is neither a general civility code nor a statute making
actionable the ‘ordinary tribulations of the workplace.’” Gupta, 212 F.3d at 587
(quoting Anderson v. Coors Brewing Co., 181 F.3d 1171, 1178 (10th Cir. 1999)).
Courts have used different words to define the “threshold level of
substantiality” required by Title VII. Wideman, 141 F.3d at 1456. In Burlington
Industries, Inc. v. Ellerth, 524 U.S. 742, 118 S. Ct. 2257 (1998), for example, a
case primarily discussing a supervisor’s vicarious liability for sexual harassment
under Title VII, the Supreme Court suggested that some kind of significantly
adverse employment action is necessary to prove an employer’s Title VII liability:
Every Federal Court of Appeals to have considered the question has
found vicarious liability when a discriminatory act results in a tangible
employment action. . . . The concept of a tangible employment action
appears in numerous cases in the Courts of Appeals discussing claims
involving race, age, and national origin discrimination, as well as sex
discrimination. Without endorsing the specific results of those
decisions, we think it prudent to import the concept of a tangible
employment action for resolution of the vicarious liability issue we
consider here. 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.
524 U.S. at 760-61, 118 S. Ct. at 2268 (emphasis added) (citation omitted). Other
courts, rather than using the word “significant,” have used the word “material.”
12
See, e.g., Allen, 165 F.3d at 410 (adverse employment action requirement means
that the employee “must establish that he has suffered a ‘materially adverse’
change in the terms or conditions of employment because of the employer’s
actions”); Harlston, 37 F.3d at 382 (“[c]hanges in duties or working conditions that
cause no materially significant disadvantage” are not actionable); see also Crady v.
Liberty Nat’l Bank & Trust Co., 993 F.2d 132, 136 (7th Cir. 1993) (requiring
under parallel provisions of ADEA a “materially adverse change” in employment
status). Still other courts have spoken of requiring the plaintiff to prove “‘serious
and tangible’” effects from the employer’s action. See Bass, slip op. at 1478
(quoting Robinson v. City of Pittsburgh, 120 F.3d 1286, 1300 (3d Cir. 1997)
(discussing Title VII’s retaliation clause)).
As applied, these standards are essentially interchangeable: Whatever the
benchmark, it is clear that to support a claim under Title VII’s anti-discrimination
clause the employer’s action must impact the “terms, conditions, or privileges” of
the plaintiff’s job in a real and demonstrable way. Although the statute does not
require proof of direct economic consequences in all cases, the asserted impact
cannot be speculative and must at least have a tangible adverse effect on the
plaintiff’s employment. We therefore hold that, to prove adverse employment
action in a case under Title VII’s anti-discrimination clause, an employee must
13
show a serious and material change in the terms, conditions, or privileges of
employment. Moreover, the employee’s subjective view of the significance and
adversity of the employer’s action is not controlling; the employment action must
be materially adverse as viewed by a reasonable person in the circumstances. See
Doe, 145 F.3d at 1453 (test for adverse employment action in ADA case patterned
after Title VII is whether “a reasonable person in [the employee’s] position would
have found [the alleged alteration of the terms and conditions of employment] to
be adverse under all the facts and circumstances”).2
Davis’s claim is predicated on two kinds of employer acts that frequently are
alleged as adverse employment action even though they do not often meet the
statutory threshold. First, Davis relies upon the negative job performance
memoranda placed in his file. Neither of the memos at issue caused him any
present or foreseeable future economic injury; he maintains, however, that these
memoranda were unwarranted, diminished his prestige and self-esteem, and
potentially may interfere with (unspecified and unexplored) future job prospects.
Second, Davis relies upon the changes in his work assignments -- specifically, his
2
Davis cites several times to broad language from a former Fifth Circuit decision, Rogers
v. EEOC, 454 F.2d 234, 238 (5th Cir. 1971). Rogers was not addressing the standard for adverse
employment action, considering instead an allegation of hostile work environment. The court
certainly did not hold, as Davis contends, that “loss of intangible benefits of employment, like
prestige, responsibility, and opportunity for growth, are [always] actionable in claims of
discrimination.”
14
two “demotions” from the OIC designation. Again, neither incident caused any
economic injury; regardless, says Davis, it is enough that they diminished his
prestige and deprived him of experience which might make him more likely to
obtain (as yet unsought) promotions in the future. As we discuss, Congress simply
did not intend for Title VII to be implicated where so comparatively little is at
stake.
A.
We do not view either of the job performance memoranda as constituting
adverse employment action. The October 31, 1996, memo, as noted above, was
not a formal reprimand under the terms of the Town’s “progressive discipline”
structure, but rather was a “counseling memorandum” expressing concern and
criticism by Barone over one aspect of Davis’s recent performance. Although the
memo described the improper conduct (failing to turn in certain documents) as
“unacceptable” and accused Davis of “ignor[ing] a very basic aspect of your job,”
the memo concluded simply by saying that “any future leave requests will not be
granted until all work-related paper work is turned in or you receive a waiver from
your supervisor or me.” It is undisputed that Davis did not suffer any tangible
consequence from this memo, in the form of a loss of pay or benefits or further
discipline. Indeed, shortly after this memo, Davis received his annual evaluation
15
with an overall rating of “excellent” and thereby received a contractually-mandated
salary increase, further suggesting that the memo did not have a material impact on
the terms and conditions of his employment. Viewed in isolation, the October 31
memo is not actionable under Title VII.
The later job performance memo (issued February 5, 1997, and revised
thereafter) is likewise not actionable. Although this memo was sterner than its
predecessor, it is still not alleged to be a reprimand under the Town’s discipline
scheme, and again, Davis did not suffer any loss of pay or benefits, or even a
negative annual performance evaluation, as a result of it. The revised memo
described several episodes that Barone considered “unacceptable” and warned that
“performance of a like nature may result in other departmental actions,” but
categorized these events as only a “cause[] for concern” that could be resolved with
improved performance in the future.
Davis’s primary objection is that this revised memo was retained in his
personnel file, and thus could jeopardize his chances of obtaining a different
position in the future within the Town or elsewhere. As Davis sees it, a police
officer’s personnel file is especially important as a record of the officer’s
performance and a resource upon which potential future employers will judge him.
His view was substantiated by the trial testimony of several witnesses.
16
There are several difficulties with this argument. First, courts are wisely
reluctant to treat job performance memoranda as actionable under Title VII where
they do not trigger any more tangible form of adverse action such as a loss in
benefits, ineligibility for promotional opportunities, or more formal discipline. In
Merriweather, for example, we affirmed the district court’s finding that a written
counseling statement that did not constitute a reprimand was not actionable in a
Title VII retaliation claim. The district court’s analysis of the issue is pertinent
here:
Merriweather complains that she received a written counseling
statement on November 6, 1996 for conduct she did not commit in
retaliation for [protected conduct]. Defendants contest whether such
counseling rose to the level of adverse employment action and
whether Merriweather can establish a causal connection between her
exercise of protected speech and the counseling. . . .
In the present case, Defendants appear to contend that the
written counseling did not amount to even a non-threatening written
reprimand. Defendants contend that a warning or counseling is the
lowest grade of discipline in the State system, does not subtract points
from an employee’s evaluation, does not affect an employee’s salary,
and is not punitive. Merriweather has not alleged that this written
counseling has had any adverse impact on her employment. She has
not produced any evidence to support that she has been fired, demoted
or denied any pay increase because of the counseling. Nor have any of
the terms of her employment been adversely affected because of the
counseling. This court therefore finds that the written counseling does
not constitute adverse employment action, and that Merriweather has
failed to state a prima facie case of retaliation based upon the written
counseling.
17
17 F. Supp. 2d at 1275 (emphasis added).
Other courts have taken a similar approach, finding that criticisms of an
employee’s job performance -- written or oral -- that do not lead to tangible job
consequences will rarely form a permissible predicate for a Title VII suit. See,
e.g., Allen, 165 F.3d at 409-10 (counseling memoranda, unlike denial of
promotion, did not constitute “materially adverse” employment action even though
motivated by racial animus); Sweeney v. West, 149 F.3d 550, 556 (7th Cir. 1998)
(counseling memoranda and “negative performance evaluations, standing alone,
cannot constitute an adverse employment action”); Rabinowitz v. Pena, 89 F.3d
482, 488 (7th Cir. 1996) (rejecting proposition that “a low performance rating is
always an adverse employment action”); Meredith v. Beech Aircraft Corp., 18 F.3d
890, 896 (10th Cir. 1994) (allegedly unjustified negative performance evaluation
held not actionable); Milburn v. West, 854 F. Supp. 1, 14 (D.D.C. 1994)
(memorandum “for the record” that recounted employee misconduct and requested
more formal discipline against employee deemed not actionable even though it was
placed in employee’s permanent file), summ. aff’d sub nom., Walker v. West, No.
94-5228 (D.C. Cir. Feb. 7, 1995) (per curiam); Nelson v. University of Maine Sys.,
923 F. Supp. 275, 282-83 (D. Me. 1996) (“mere criticism, or counseling, of an
employee” is not actionable); Coney v. Department of Human Res., 787 F. Supp.
18
1434, 1442 (M.D. Ga. 1992) (non-threatening written reprimand, later removed
from employee’s personnel file, held not actionable); Medwid v. Baker, 752 F.
Supp. 125, 137 (S.D.N.Y. 1990) (counseling of employee for performance
deficiency not materially adverse action).3
Given that Congress in § 2000e-2(a) has expressly limited the types of
employer actions which may give rise to a Title VII discrimination claim, such a
claim rarely may be predicated merely on employer’s allegedly unfounded
criticism of an employee’s job performance, where that criticism has no tangible
impact on the terms, conditions, or privileges of employment. An employee who
receives criticism or a negative evaluation may lose self-esteem and conceivably
may suffer a loss of prestige in the eyes of others who come to be aware of the
evaluation. But the protections of Title VII simply do not extend to “‘everything
that makes an employee unhappy.’” Robinson, 120 F.3d at 1300 (holding that oral
3
Likewise, in Graham v. State Farm Mutual Insurance Co., 193 F.3d 1274, 1283 (11th
Cir. 1999) (per curiam), we found that a counseling memo expressing concern with plaintiff’s
improper absences and warning of possible ramifications “simply did not meet the ‘threshold
level of substantiality’ required by the Eleventh Circuit in Wideman.” In so doing, we stressed
that the “plaintiff did not suffer any repercussions” from the memo, and that “[i]n such
circumstances, courts have generally found no adverse employment action.” Id. Although we
remarked in dicta that “undeserved negative job evaluations” may be actionable under Title
VII’s retaliation clause, Graham did not address Title VII’s anti-discrimination clause.
Moreover, Wideman, the sole opinion cited for that proposition, did not hold that negative job
evaluations are actionable; indeed, it emphasized that “there is some level of substantiality that
must be met for unlawful discrimination to be cognizable under the anti-retaliation clause.” 141
F.3d at 1456.
19
reprimands were not actionable under Title VII’s retaliation clause and adding that
“[o]therwise, minor and even trivial employment actions that ‘an irritable,
chip-on-the-shoulder employee did not like would form the basis of a
discrimination suit.’”) (quoting Smart v. Ball State University, 89 F.3d 437, 441
(7th Cir. 1996)).
Employer criticism, like employer praise, is an ordinary and appropriate
feature of the workplace. Expanding the scope of Title VII to permit
discrimination lawsuits predicated only on unwelcome day-to-day critiques and
assertedly unjustified negative evaluations would threaten the flow of
communication between employees and supervisors and limit an employer’s ability
to maintain and improve job performance. Federal courts ought not be put in the
position of monitoring and second-guessing the feedback that an employer gives,
and should be encouraged to give, an employee. Simply put, the loss of prestige or
self-esteem felt by an employee who receives what he believes to be unwarranted
job criticism or performance review will rarely -- without more -- establish the
adverse action necessary to pursue a claim under Title VII’s anti-discrimination
clause.4
4
Davis cites dicta in Doe, an ADA case, to assert that a loss of prestige is by itself
sufficient to state a claim. Doe does not hold that an asserted loss of prestige can transform
employer conduct which does not alter the “terms, conditions, or privileges” of the plaintiff’s
employment into a proper basis for suit under Title VII’s anti-discrimination clause. Indeed,
20
Second, to the extent Davis’s concern is that the revised memo became part
of his personnel file, the undisputed evidence at trial established that the memo has
now been removed. The memo may not have been removed by the promised date
(February 5, 1998), but Chief Lindskoog testified without contradiction at trial in
July 1998 that it had been removed by that point. We are not aware of any record
evidence establishing that the inclusion of the memo in Davis’s personnel file
between February 1997 and no later than July 1999 affected his job prospects
within or beyond the Town in any way.5 There is no testimony, for example,
suggesting that Davis was denied a promotion in the Town or passed over for a job
elsewhere due to the presence of that memo in his file. Nor is there any evidence
that the contents of the memo (or the October 31 memo, for that matter) were
disclosed to other officers. Accordingly, Davis cannot show any tangible
consequences from the memo.
discussing the job transfer at issue in that case, we stressed that “it is not enough that a transfer
imposes some de minimis inconvenience or alteration of responsibilities.” Id. at 1453.
5
Davis contends, without dispute, that by law this document cannot be destroyed, and
remains theoretically accessible to potential future employers and members of the public under
Florida’s public records laws. The significance of that information is unclear, however. If
indeed the document has been eliminated from Davis’s personnel records, we cannot conceive
(and have not been told by the parties) how that document might nevertheless someday be
circulated to potential future employers. In any event, the important point here is that Davis has
made no showing on this record that the memos at issue had any effect, let alone tangible effect,
on him beyond assertedly diminishing his prestige and self-esteem. Moreover, the fact that the
allegedly unjustified evaluations are written as opposed to oral, and hence recorded in more
permanent fashion, does not change this fundamental defect in Davis’s argument.
21
In any event, this kind of allegation -- that the employer’s criticism or
negative evalution may affect the employee’s prospects -- does little to advance
Davis’s claim even if true. Any job criticism or negative job review carries with it
the possibility that the employee’s future prospects may be prejudiced if that
information is disclosed. A negative evaluation that otherwise would not be
actionable will rarely, if ever, become actionable merely because the employee
comes forward with evidence that his future prospects have been or will be
hindered as a result.
B.
The other adverse actions alleged by Davis concern the two instances when
he was briefly “removed” as the designated Officer-in-Charge. Davis attempts to
cast these incidents as tantamount to a demotion, which clearly may be actionable
under Title VII, by characterizing his appointments as OIC as a promotion.
Alternatively, Davis alleges that these incidents altered his work assignments, a
step which some courts have said may constitute adverse employment action if the
change in job responsibilities is substantial.
Viewing the OIC designation as a promotion, so that even a brief removal
from that designation constitutes a demotion actionable under Title VII, is not
22
persuasive.6 The OIC designation is, by definition, ephemeral: an officer is not
permanently named the OIC for any given shift, but rather that determination is
made on a case-by-case basis by the relevant supervisory officials. Davis contends
that all at-will employment positions may be viewed as temporary in the sense that
the employee may be removed from the position at any time, and that accordingly
emphasizing the temporary nature of the OIC designation is misleading. But the
OIC designation, unlike an ordinary at-will job, exists solely as a stop-gap measure
to ensure that certain duties are fulfilled in the event the officer normally
responsible for those duties becomes unavailable. Moreover, being designated
OIC does not bring with it any increase in salary or benefits, or unique
opportunities for advancement within the department. Finally, if we accept that the
OIC designation is usually given as a matter of course to the most senior road
patrol officer on a given shift, then it is even more difficult to view that designation
as the same kind of recognition of achievement that a promotion typically implies.
Equally unpersuasive is Davis’s argument that the two occasions when he
was removed as OIC constituted a material change in his regular work
6
The OIC designation is not deemed a promotion under the Town’s code or personnel
policies. Davis makes much of the fact that in its summary judgment papers to the district court
the Town’s attorneys referred to the process by which a road patrol officer is “promoted” to OIC.
The Town has since retreated from that presumably inadvertent description, and we do not attach
great importance to it, especially as it was made in the context of the Town arguing that the
removals from the OIC designation cannot be deemed adverse employment actions.
23
assignments. As noted above, OIC is an ephemeral designation; it was not
presented to Davis as becoming, and did not become, a permanent feature of his
job responsibilities as an employee of the Town. Nor is it clear that actual
additional responsibilities of serving as OIC were substantial, at least during the
periods that Davis served in that capacity; after all, a person assumed OIC duties
only on a part-time basis when the sergeant or other more senior shift supervisor
was absent, and even then it is not established on this record that a great deal of
additional work or responsibility was involved. Cf. Allen, 165 F.3d at 409-10 (no
claim of adverse employment action based on defendant’s failure to permit
corrections officer to serve as “acting sergeant” in regular sergeant’s absence).
Furthermore, even assuming that there is some prestige attached to being
designated as OIC, any loss of prestige suffered by Davis on these two occasions
must be weighed against the fact that he served as OIC on subsequent occasions
after each instance when he was removed. Cf. Yates v. Avco Corp., 819 F.2d 630,
638 (6th Cir. 1987) (temporary demotion of employee to lower grade level, with no
change in salary or benefits and the assurance that she would be restored to her
prior, higher grade level once a new position became available, held not actionable
under Title VII). More to the point, even accepting that Davis may have felt some
24
blow to his professional image when he was removed as OIC, that is simply not
enough to prevail on this record.
A contrary view would potentially open the door to a wide variety of unfair
work assignment claims that should not be litigated in the federal courts. Title VII
is not designed to make federal courts “‘sit as a super-personnel department that
reexamines an entity’s business decisions.’” Elrod v. Sears, Roebuck & Co., 939
F.2d 1466, 1470 (11th Cir. 1991); see also Combs v. Plantation Patterns, 106 F.3d
1519, 1543 (11th Cir. 1997) (stressing that “federal courts do not sit to
second-guess the business judgment of employers”). Work assignment claims
strike at the very heart of an employer’s business judgment and expertise because
they challenge an employer’s ability to allocate its assets in response to shifting
and competing market priorities. The same concern exists for public entities such
as the Town’s Police Department, which must balance limited personnel resources
with the wide variety of critically important and challenging tasks expected of
them by the public.
For these reasons, applying the adverse action requirement carefully is
especially important when the plaintiff’s claim is predicated on his disagreement
with his employer’s reassignment of job tasks. Courts elsewhere have been
reluctant to hold that changes in job duties amount to adverse employment action
25
when unaccompanied by any tangible harm. See, e.g., Mungin v. Katten Muchin
& Zavis, 116 F.3d 1549, 1557 (D.C. Cir. 1997) (agreeing with “other circuits
[which] have held that changes in assignments or work-related duties do not
ordinarily constitute adverse employment decisions if unaccompanied by a
decrease in salary or work hour changes.”) (citing, inter alia, Kocsis v. Multi-Care
Mgmt., 97 F.3d 876, 886-87 (6th Cir. 1996) and Crady, 993 F.2d at 136).
We do not suggest that a change in work assignments can never by itself
give rise to a Title VII claim; in unusual instances the change may be so substantial
and material that it does indeed alter the “terms, conditions, or privileges” of
employment. Cf. McNely v. Ocala Star-Banner Corp., 99 F.3d 1068, 1077-78
(11th Cir. 1996) (holding that district court erred by refusing to submit verdict
form allowing ADA plaintiff to recover for conduct short of termination where
plaintiff alleged that he had been relieved of his supervisory duties, assigned to
clean toilets as a janitor, and later reassigned to shipping department where he was
expected to perform physical tasks difficult or impossible for him to complete). In
the vast majority of instances, however, we think an employee alleging a loss of
prestige on account of a change in work assignments, without any tangible harm,
will be outside the protection afforded by Congress in Title VII’s anti-
discrimination clause -- especially where, as here, the work assignment at issue is
26
only by definition temporary and does not affect the employee’s permanent job
title or classification.
To the extent Davis’s removal as OIC on these two occasions deprived him
of valuable experience that might have given rise to more lucrative opportunities
within the department or elsewhere, Davis acquired that experience by serving as
OIC on previous and subsequent occasions. In any event, this claim of harm is
made only at the highest order of abstraction; there is no evidence that Davis
sought, let alone was denied any opportunity due to his removal as OIC on the two
occasions at issue. The OIC incidents plainly do not establish adverse employment
action.
C.
Davis also contends that even if none of the particular incidents about which
he complains (the two memos and the two instances when he was removed as OIC)
amounts to adverse employment action when viewed in isolation, viewed as a
whole these incidents do support a Title VII discrimination claim. We disagree.
Davis’s argument relies almost entirely upon our opinion in Wideman,
which discussed adverse employment action in the context of a Title VII retaliation
claim. There, we stated that it was “enough to conclude, as we do, that the actions
about which Wideman complains considered collectively are sufficient to
27
constitute prohibited discrimination. We need not and do not decide whether
anything less than the totality of the alleged reprisals would be sufficient.” 141
F.3d at 1456.
The facts of Wideman are altogether different than those present here. In
Wideman, the employee not only received two formal written reprimands, she also
was suspended, threatened, and her health was put in jeopardy. Id. at 1455.
Although Wideman did not purport to answer the question, at least one of these
sanctions (the suspension) presumably would be actionable standing alone under
our precedent. In this case, by contrast, Davis was not suspended, was not given a
formal reprimand, and suffered little if any of the verbal harassment apparently
suffered by the plaintiff in Wideman. Viewed individually or collectively, the
adverse action alleged by Davis is highly insubstantial in comparison to the
misconduct alleged in Wideman.
In the end, no reasonable jury could view the relatively minor incidents
suffered by Davis as the kind of adverse employment action that Title VII was
intended to redress. The fact that the jury awarded Davis only nominal damages is
a telling indication that the Town’s alleged misconduct did not impact Davis in any
material way. We do not diminish the seriousness of Davis’s allegations of race-
motivated conduct (allegations which the jury apparently credited in a verdict that
28
the Town, notably, does not contest on that basis). But while Congress certainly
could have extended the protection of Title VII to all aspects of the employment
relationship, it plainly did not so, and instead contemplated relief under the
statute’s anti-discrimination clause only to employees injured in the “terms,
conditions, or privileges” of their employment. The injuries alleged by Davis --
loss of prestige and potential future opportunities associated with two negative job
performance memoranda and the denial on two brief occasions of a favorable work
assignment -- do not meet the threshold set by Congress.
Because adverse employment action is an indispensable element of a Title
VII plaintiff’s case, Davis’s failure to present sufficient evidence for a reasonable
jury to find that this element was met is fatal to his case. See Turlington v. Atlanta
Gas Light Co., 135 F.3d 1428, 1432 (11th Cir. 1998) (“Although a plaintiff’s
burden in proving a prima facie case is light, summary judgment against the
plaintiff is appropriate if he fails to satisfy any one of the elements of a prima facie
case.”) (citations omitted).7 Accordingly, the district court properly entered
judgment against Davis and in favor of the Town.
AFFIRMED.
7
Because we find that Davis failed to prove adverse employment action, his Title VII
claim fails on that basis alone, and we do not reach the Town’s alternative argument that Davis
was required to show, but did not show, that similarly-situated white employees were treated
differently than he was.
29