Greene v. Daimlerchrysler Services of North America , 128 F. App'x 353 ( 2005 )


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  •                                                        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    that this opinion should not be published and is not precedent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.
    -1-
    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
    -2-
    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
    -3-
    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.
    -4-
    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
    -5-
    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.
    -6-
    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
    -7-
    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
    -9-
    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.
    -10-