The Fifth Circuit Finds That a Reduction in Job Responsibilites Could Constitute an Adverse Employment Action

One of the essential elements of a discrimination claim is that the employee must have suffered an “adverse employment action.”  The purpose of this element is to weed out minor complaints, such as write-ups and other matters that do not affect the terms and conditions of employment.  As a general rule, an adverse employment action will be found when the employee has not been hired, has been terminated, has been demoted, has been denied a promotion, has received a pay cut, or has been denied a pay increase.

From time to time, a case arises in which the application of these principles is not so clear.  This was the case in Thompson v. City of Waco, No. 13-50718 (5th Cir. Sept. 3, 2014).

Thompson is a black detective in the Waco Police Department.  As a disciplinary matter, the department imposed restrictions on him that it did not place on two white detectives who had committed the same disciplinary infraction.  The court summarized Thompson’s allegations:

The restrictions state that Thompson cannot (1) search for evidence without supervision; (2) log evidence; (3) work in an undercover capacity; (4) be an affiant in a criminal case; (5) be the evidence officer at a crime scene; and (6) be a lead investigator on an investigation. According to Thompson, these restrictions have stripped him of the “integral and material responsibilities of a detective,” and constitute a demotion. Thompson alleges that he “no longer functions as a full-fledged detective; he is, effectively, an assistant to other detectives.” He further alleges that his new position has “significantly different and diminished material responsibilities,” is less prestigious, will hinder his opportunities for advancement, and is less interesting. He no longer uses the skills, education, and experience that he had acquired and regularly used as a detective.

The district court held that this was not an “adverse employment action” and dismissed the case.  By a 2-1 vote, the Fifth Circuit reversed.  The majority began by stating the general definition of an adverse employment action:

For Title VII and § 1981 discrimination claims, we have held that adverse employment actions consist of “ultimate employment decisions” such as hiring, firing, demoting, promoting, granting leave, and compensating.. “[A]n employment action that ‘does not affect job duties, compensation, or benefits’ is not an adverse employment action.”   

Additionally, our court has held that a transfer or reassignment can be the equivalent of a demotion, and thus constitute an adverse employment action. “[T]o be the 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.”  (citations omitted).

The majority noted that a mere loss of “some” job responsibilities is not an adverse employment action, but it held that a "significant and material" change in job responsibilities could qualify:

This court has recognized that the mere “loss of some job responsibilities” does not constitute an adverse employment action.. Other circuits similarly agree that “a mere inconvenience or an alteration of job responsibilities” will not suffice.

This does not mean that a change in or loss of job responsibilities can never form the basis of an actionable discrimination claim, however. In certain instances, a change in or loss of job responsibilities—similar to the transfer and reassignment contexts—may be so significant and material that it rises to the level of an adverse employment action.  (citations omitted).

Applying those principles, the majority found that Thompson had stated a plausible cause of action:

In this case, Thompson alleges more than a mere loss of some job responsibilities. He alleges facts that, taken as true, plausibly suggest that, following his reinstatement, the Department rewrote and restricted his job description to such an extent that he no longer occupies the position of a detective; he now functions as an assistant to other detectives. Although a detective in name, Thompson alleges that he can no longer “detect”—that is, search for evidence—without supervision. Nor can he log evidence, be the affiant in a criminal case, work undercover, be the evidence officer at a crime scene, or be the lead investigator on an investigation. Thompson therefore alleges that he lost the essential job functions of a detective, he no longer uses his education and skills that he had acquired and regularly used as a detective, and his new position is less interesting, provides fewer opportunities for advancement, is less prestigious, and involves significantly diminished responsibilities. We previously have held that an employment decision “need not result in a decrease in pay, title, or grade” to constitute a demotion; “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.” Viewing the factual allegations in the light most favorable to Thompson, we conclude that Thompson plausibly alleges that he was subject to the equivalent of a demotion. (citation omitted).

The court thus reversed and remanded the case to the district court.

Judge Jerry Smith dissented, arguing that an adverse employment action could not be found without an actual change in employment status:

Ultimate employment decisions include only hiring, firing, promoting, failing to promote, demoting, granting leave, and compensating.  Employment actions such as a purely lateral transfer,  reprimands,  those that only limit a potential an employee’s opportunity for promotion or lateral transfer, and those that “do[] not affect job duties, compensation, or benefits” are not actionable adverse employment actions.

The lesson from this case is that, even though the courts tend to construe the “adverse employment action” element narrowly, it may be possible to go beyond the traditional limitations if the plaintiff can articulate and prove circumstances that justify a broader view.  If Thompson had merely alleged that the department placed restrictions on him that it did not place on the white detectives, the result would most likely have been different.  Instead, he listed the specific restrictions and explained why they were significant.  This was enough to get him past a motion to dismiss.

David C. Holmes is a Houston employment lawyer with The Law Offices of David C. Holmes

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