Case: 21-10133 Document: 00516417327 Page: 1 Date Filed: 08/03/2022
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
August 3, 2022
No. 21-10133 Lyle W. Cayce
Clerk
Felesia Hamilton; Tashara Caldwell; Brenda Johnson;
Arrisha Knight; Jamesina Robinson; Debbie Stoxstell;
Felicia Smith; Tameka Anderson-Jackson; Tammy
Island,
Plaintiffs—Appellants,
versus
Dallas County, doing business as Dallas County Sheriff’s
Department,
Defendant—Appellee.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:20-CV-313
Before Higginbotham, Stewart, and Wilson, Circuit Judges.
Carl E. Stewart, Circuit Judge:
Plaintiffs-Appellants appeal the district court’s order granting
Defendant-Appellee’s motion to dismiss under Rule 12(b)(6). Because
Plaintiffs-Appellants did not plead an adverse employment action, as
required under this circuit’s Title VII precedent, we AFFIRM.
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I. Background
Plaintiffs-Appellants are nine female detention service officers
working at the Dallas County Jail who are employed by Defendant-Appellee
Dallas County Sheriff’s Department. Dallas County (“the County”)
provides two days off per week for its detention service officers. Most officers
prefer to schedule their days off on weekends. Before April 2019, Plaintiffs-
Appellants’ schedules were based on seniority. However, in or around April
2019, 1 a gender-based scheduling policy went into effect and only male
officers were given full weekends off whereas female officers were allowed
two weekdays off or one weekday and one weekend day off. Plaintiffs-
Appellants alleged that “[w]hen [they] asked the [s]ergeant how scheduling
was determined, he stated that it was based on gender” and explained that it
would be safer for the male officers to be off during the weekends as opposed
to during the week. 2 Plaintiffs-Appellants reported the new scheduling policy
to their sergeant, lieutenant, chief, and human resources, all of whom
declined to modify the policy. The policy remained in place at the time
Plaintiffs-Appellants filed their complaint. 3
Plaintiffs-Appellants filed a discrimination complaint with the Equal
Employment Opportunity Commission and received Notice of Right to Sue
Letters. On February 10, 2020, Plaintiffs-Appellants filed suit against the
County for violations of Title VII and the Texas Employment Discrimination
1
The record does not contain the exact date on which the County implemented the
scheduling policy at issue, so it is unclear whether the old or new policy was in effect during
the month of April 2019. We assume the new scheduling policy was implemented at some
point in April 2019.
2
Relevant here, male and female officers perform the same tasks, and the number
of inmates during the week is the same as the number on weekends.
3
On appeal, the County asserts that the gender-based scheduling policy was
temporary. Neither party has stated if or when the policy was revoked.
2
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Act (the “TEDA”). Specifically, they alleged that the County “engaged in
the practice of discrimination with respect to the terms and conditions of
Plaintiffs’ employment.”
On June 4, 2020, the County filed a motion to dismiss under Rule
12(b)(6) arguing that Plaintiffs-Appellants failed to state a plausible claim for
relief because they did not suffer an adverse employment action. On June 25,
2020, Plaintiffs-Appellants filed a response arguing that the gender-based
scheduling policy harmed their work conditions and made their jobs
objectively worse. Alternatively, they requested leave to amend.
The district court granted the County’s motion to dismiss. The
district court acknowledged that the County’s facially discriminatory
scheduling policy demonstrated unfair treatment and that it was plausible
that the denial of full weekends off made Plaintiffs-Appellants’ jobs
objectively worse. Nonetheless, “the binding precedent of this [c]ircuit
compel[led]” it to hold that Plaintiffs-Appellants failed to state a claim upon
which relief could be granted because they did not plead an adverse
employment action. The district court granted Plaintiffs-Appellants leave to
amend their complaint, but because Plaintiffs-Appellants did not amend their
pleadings within thirty days, it ultimately dismissed the action with prejudice.
This appeal followed.
On appeal, Plaintiffs-Appellants argue that the district court erred by
considering whether the County’s scheduling policy constituted an adverse
employment action rather than applying the statutory text of Title VII and
the TEDA. They further contend that the scheduling policy qualifies as an
adverse employment action.
II. Standard of Review
This court reviews dismissals for failure to state a claim de novo,
“accepting all well-pleaded facts as true and viewing those facts in the light
most favorable to the plaintiffs.” Littell v. Hous. Indep. Sch. Dist., 894 F.3d
3
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616, 622 (5th Cir. 2018). To survive a motion to dismiss, a plaintiff must
plead “enough facts to state a claim to relief that is plausible on its face.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
III. Discussion
This case presents a unique factual scenario because the employment
action at issue applies to all the members of the protected group and the
employer does not dispute its discriminatory intent. Instead, the County
argues that Plaintiffs-Appellants failed to plead an adverse employment
action. The rule of orderliness and existing Fifth Circuit precedent support
the County’s argument, and thus we must affirm.
Section 703(a)(1) of Title VII of the Civil Rights Act of 1964 makes it
unlawful for an employer to “discriminate against any individual with respect
to [her] compensation, terms, conditions, or privileges of employment,
because of such individual’s . . . sex.” 42 U.S.C. § 2000e-2(a)(1). Texas’s
Title VII analogue, the TEDA, similarly makes it an “unlawful employment
practice” for an employer to “discriminate[] . . . against an individual in
connection with compensation or the terms, conditions, or privileges of
employment” because of sex. Tex. Lab. Code Ann. § 21.051(1) (1993).
A plaintiff who has exhausted her administrative remedies may prove
a claim of intentional discrimination either by direct or circumstantial
evidence. McCoy v. City of Shreveport, 492 F.3d 551, 556 (5th Cir. 2007).
“Direct evidence of an employer’s discriminatory intent is rare; therefore,
Title VII plaintiffs must ordinarily prove their claims through circumstantial
evidence.” Scales v. Slater, 181 F.3d 703, 709 (5th Cir. 1999). This court
evaluates Title VII employment discrimination cases built on circumstantial
4
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evidence under the framework set forth in McDonnell Douglas Corp. v. Green. 4
McCoy, 492 F.3d at 556. Under that framework, the plaintiff must first
establish a prima facie case of discrimination by showing that she (1) is a
member of a protected group; (2) was qualified for the position at issue; (3)
was discharged or suffered some adverse employment action by the
employer; and (4) was replaced by someone outside her protected group or
was treated less favorably than other similarly situated employees outside the
protected group. 5 Id.
The Supreme Court has held, however, that “the McDonnell Douglas
test is inapplicable where the plaintiff presents direct evidence of
discrimination.” Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121
(1985); accord Herster v. Bd. of Supervisors of La. State Univ., 887 F.3d 177, 185
(5th Cir. 2018). When a plaintiff presents direct evidence of discrimination,
“the burden of proof shifts to the employer to establish by a preponderance
of the evidence that the same decision would have been made regardless of
the forbidden factor.” Etienne v. Spanish Lake Truck & Casino Plaza, L.L.C.,
778 F.3d 473, 475 (5th Cir. 2015), as revised (Feb. 3, 2015) (quoting Brown v.
E. Miss. Elec. Power Ass’n, 989 F.2d 858, 861 (5th Cir. 1993)). This court has
defined direct evidence as “evidence which, if believed, proves the fact
without inference or presumption.” Jones v. Robinson Prop. Grp., L.P., 427
F.3d 987, 992 (5th Cir. 2005). To determine whether comments in the
workplace constitute “direct evidence,” or only “stray remarks,” this court
has looked to four factors: whether the comments are (1) related to the
4
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–04 (1973).
5
If the plaintiff makes a prima facie showing, the burden shifts to the employer to
proffer a legitimate, nondiscriminatory reason for its employment action. McCoy, 492 F.3d
at 557. If the employer meets this burden of production, the burden shifts to the plaintiff to
ultimately prove that the employer’s proffered reason is instead a pretext for the real
discriminatory purpose. Id.
5
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plaintiff’s protected characteristic; (2) proximate in time to the challenged
employment decision; (3) made by an individual with authority over the
challenged employment decision; and (4) related to the challenged
employment decision. Etienne, 778 F.3d at 476. All four factors are satisfied
here. “In the context of Title VII, direct evidence includes any statement or
written document showing a discriminatory motive on its face.” Herster, 887
F.3d at 185 (quoting Portis v. First Nat’l Bank of New Albany, 34 F.3d 325, 329
(5th Cir. 1994), as amended on denial of reh’g (Nov. 10, 1994)).
Here, Plaintiffs-Appellants pled that their supervising sergeant stated
that the scheduling policy in question was based on gender. Accepting these
facts as true, Plaintiffs-Appellants have alleged direct evidence of
discrimination because the sergeant’s statement about the policy shows a
discriminatory motive on its face. In other words, no inference or
presumption is required to get from the sergeant’s statement—that the new
scheduling policy was based on gender—to the conclusion that Plaintiffs-
Appellants were denied full weekends off because they are women. 6 As
mentioned, this court rarely encounters direct evidence cases because
employers seldom admit to a discriminatory motive as the sergeant did here.
The conduct complained of here fits squarely within the ambit of Title
VII’s proscribed conduct: discrimination with respect to the terms,
conditions, or privileges of one’s employment because of one’s sex. Given
the generally accepted meaning of those terms, the County would appear to
have violated Title VII. See Threat v. City of Cleveland, 6 F.4th 672, 677–78
(6th Cir. 2021) (collecting definitions of “terms” and “privileges”
contemporaneous to the enactment of Title VII). Moreover, the Supreme
6
See Etienne, 778 F.3d at 476, as revised (Feb. 3, 2015) (“Put differently, ‘no
inference or presumption’ is required to get from this statement—that Etienne was ‘too
black to do various tasks at the casino’—to the conclusion ‘that race was a basis in
employment decisions’ made at Spanish Lake with regard to Etienne.”).
6
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Court has explained that section 703(a) of Title VII refers to “actions that
affect employment or alter the conditions of the workplace,” Burlington N.
& Santa Fe Ry. Co. v. White, 548 U.S. 53, 62 (2006), and that “the particular
days of the week during which employees shall be required to work are
subjects well within the realm of ‘wages, hours, and other terms and
conditions of employment,’” Loc. Union No. 189, Amalgamated Meat Cutters
& Butcher Workmen of N. Am. v. Jewel Tea Co., 381 U.S. 676, 691 (1965).
Surely allowing men to have full weekends off, but not women, on the basis
of sex rather than a neutral factor like merit or seniority, constitutes
discrimination with respect to the terms or conditions of those women’s
employment. And the benefits that come with seniority, 7 here, the ability to
request one’s preferred days off, should amount to a privilege of
employment.
Yet we are bound by this circuit’s precedent, which requires a Title
VII plaintiff to establish a prima facie case of discrimination by showing, inter
alia, that she “suffered some adverse employment action by the employer.”
McCoy, 492 F.3d at 556. Further narrowing this requirement, we have held
that “[a]dverse employment actions include only ultimate employment
decisions such as hiring, granting leave, discharging, promoting, or
compensating,” Welsh v. Fort Bend Indep. Sch. Dist., 941 F.3d 818, 824 (5th
Cir. 2019) (emphasis added), cert. denied, 141 S. Ct. 160 (2020)
(quoting McCoy, 492 F.3d at 559). This rule first arose in the Fifth Circuit
nearly twenty-seven years ago when, in Dollis v. Rubin, 77 F.3d 777 (5th Cir.
1995), we adopted dictum from a Fourth Circuit case involving a different
7
“In the area of labor relations, ‘seniority’ is a term that connotes length of
employment. A ‘seniority system’ is a scheme that allots to employees ever improving
employment rights and benefits as their relative lengths of permanent employment
increase.” N.A.A.C.P., Detroit Branch v. Detroit Police Officers Ass’n, 900 F.2d 903, 907
(6th Cir. 1990).
7
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provision of Title VII. See id. at 781–782 (“Title VII was designed to address
ultimate employment decisions, not to address every decision made by
employers that arguably might have some tangential effect upon those
ultimate decisions.”) (citing Page v. Bolger, 645 F.2d 227, 233 (4th Cir.
1981). 8 Today, our circuit precedent and the rule of orderliness 9 constrain us
to conclude that because the denial of weekends off is not an ultimate
employment decision, the district court correctly granted the County’s
motion to dismiss on the grounds that Plaintiffs-Appellants did not plead an
adverse employment action. See Hernandez v. Sikorsky Support Servs., Inc.,
495 F. App’x 435, 438 (5th Cir. 2012) (per curiam) (unpublished) (holding
that a plaintiff whose supervisor denied her seniority-based preference in
shift scheduling suffered no adverse employment action); Mylett v. City of
Corpus Christi, 97 F. App’x 473, 475 (5th Cir. 2004) (per curiam)
8
The Fourth Circuit has since declined to adopt the dictum from Page. See Von
Gunten v. Maryland, 243 F.3d 858, 866 (4th Cir. 2001) (“[W]e cannot interpret the
quotation from Page as improperly restricting § 2000e–3 adverse employment action to
‘ultimate employment decisions.’”).
9
“Under our rule of orderliness, we may not overrule a prior panel decision absent
an intervening change in the law, such as a statutory amendment or a decision from either
the Supreme Court or our en banc court.” Thompson v. Dall. City Att’y’s Off., 913 F.3d 464,
467 (5th Cir. 2019).
8
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(unpublished) (holding that changes of work hours and the denial of day
shifts are not adverse employment actions). 10
The Sixth and District of Columbia Circuits recently confronted a
similar dilemma. In Threat v. City of Cleveland, the city used a seniority-based
bidding system to assign shifts to its Emergency Medical Service (“EMS”)
captains. 6 F.4th at 676. The captains’ collective bargaining agreement
allowed the city’s EMS Commissioner to transfer up to four captains to a
different shift, even if it conflicted with a captain’s first choice. Id. Such was
the case when the bidding process generated a schedule in which only black
captains would staff a day shift. Id. The Commissioner then replaced one of
the black captains with a white captain to “diversify the shift,” but that white
captain had a conflict that prevented him from working that shift. Id. The
rebidding process yielded a similar result, with the Commissioner again
reassigning a black captain to “create diversity.” Id. Fed up with the race-
based scheduling assignments, the captains brought a Title VII
discrimination claim against the city. Id. Following discovery, the parties
10
Hernandez and Mylett, though unpublished, both reflect the binding circuit
precedent that we confront in this case. Both cases cite Benningfield v. City of Houston, 157
F.3d 369, 377 (5th Cir. 1998), for the proposition that changes of hours and the denial of
particular shifts are not adverse employment actions. But the relevant holding from
Benningfield appeared in the context of a First Amendment retaliation claim, not a Title VII
employment discrimination claim. There, in evaluating the plaintiff’s First Amendment
retaliation claim, this court stated that “[a]dverse employment actions are discharges,
demotions, refusals to hire, refusals to promote, and reprimands.” Benningfield, 157 F.3d
at 376 (quoting Pierce v. Tex. Dep’t of Crim. Just., 37 F.3d 1146, 1149 (5th Cir. 1994)). It then
explained that the Pierce court “declined to expand the list of actionable adverse actions,
noting that some things are not actionable even though they have the effect of chilling the
exercise of free speech.” Id. (citing Pierce, 37 F.3d at 1150). Accordingly, the definition of
“adverse employment action” for First Amendment retaliation purposes is not identical to
the definition for Title VII employment discrimination purposes. Thus, the repeated
reliance on Benningfield and other First Amendment retaliation cases in our Title VII
employment discrimination analyses has created doctrinal confusion.
9
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cross-moved for summary judgment, and the district court granted the city’s
motion on grounds that the captains could not show a “materially adverse
employment action.” Id. at 676–77. The Sixth Circuit reversed, reasoning
that its precedent construing Title VII to only cover “materially adverse
employment actions” was intended to be shorthand for the statutory text and
to incorporate a de minimis exception. Id. at 678–79, 682. Addressing its line
of cases stating that shift changes do not count as materially adverse
employment actions under Title VII, the court further explained that it had
never set forth a categorical rule that actionable discrimination claims could
never be based on shift changes. Id. at 679. It thus held that the captains had
stated a cognizable claim under Title VII. Id.
Similarly, in Chambers v. District of Columbia, 35 F.4th 870 (D.C. Cir.
2022), the en banc court overruled its precedent holding that the denial or
forced acceptance of a job transfer was actionable under Title VII only if the
employee suffered “objectively tangible harm.” Id. at 872. It reasoned that
this rule was a “judicial gloss that lacks any textual support” from Title VII.
Id. at 875.
The Fourth Circuit, while still requiring a showing of an adverse
employment action, hews closer to the text of Title VII. See James v. Booz-
Allen & Hamilton, Inc., 368 F.3d 371, 375 (4th Cir. 2004). It defines an adverse
employment action as “a discriminatory act which ‘adversely affect[s] “the
terms, conditions, or benefits” of the plaintiff’s employment.’” Id. It has
made clear that “[c]onduct short of ‘ultimate employment decisions’ can
constitute adverse employment action.” Id. at 375–76.
Given these holdings by our sister circuits, our circuit’s deviation
from the text of Title VII leaves us with the proverbial circuit split.
Unshackled by our precedent limiting Title VII to apply only to “ultimate
employment decisions, such as hiring, granting leave, discharging,
promoting, or compensating an employee,” Plaintiffs-Appellants would still
10
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have to satisfy their attendant burdens for a Title VII claim. However, they
would remain in court with the opportunity to do so, especially at the Rule
12(b)(6) stage where they must only plead a plausible claim to relief. But
sympathetic as we may be to Plaintiffs-Appellants’ position, the rule of
orderliness forbids us from “overrul[ing] a prior panel decision absent an
intervening change in the law, such as a statutory amendment or a decision
from either the Supreme Court or our en banc court.” Ortega Garcia v.
United States, 986 F.3d 513, 532 (5th Cir. 2021). Only the en banc court can
do that.
The strength of the allegations here—direct evidence of a workforce-
wide policy denying full weekends off to women in favor of men—coupled
with the persuasiveness of Threat, Chambers, and James, make this case an
ideal vehicle for the en banc court to reexamine our ultimate-employment-
decision requirement and harmonize our case law with our sister circuits’ to
achieve fidelity to the text of Title VII.
IV. Conclusion
Bound by the rule of orderliness, we AFFIRM the district court’s
order granting the County’s motion to dismiss.
11