Johnson v. City of San Antonio ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 00-50834
_____________________
ODELL JOHNSON, JR.
Plaintiff-Appellant,
versus
CITY OF SAN ANTONIO
Defendant-Appellee.
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Appeals from the United States District Court
for the Western District of Texas, San Antonio
USDC No. 99-CV-575
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August 31, 2001
Before JOLLY, SMITH and WIENER, Circuit Judges.
PER CURIAM:*
Odell Johnson, Jr., a black police officer with the San
Antonio Police Department, appeals the district court’s grant of
summary judgment to the City of San Antonio on his Title VII
retaliation and hostile work environment claims. Because we find
that the district court correctly granted summary judgment for the
City, we affirm.
Johnson first contends that he was retaliated against in
*
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this opinion should not be published and is not precedent except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.
violation of 42 U.S.C. §2000e-3 because he protested Lt. Griffin’s
discrimination against him on the basis of race and because he
protested Griffin’s orders to enforce the law in a discriminatory
manner. We have construed Title VII’s anti-retaliation provision
narrowly, holding that it only applies when the plaintiff is
subjected to an “ultimate employment decision” such as “hiring,
granting leave, discharging, promoting, and compensating.” Watts
v. The Kroger Co., 170 F.3d 505, 511-12 (5th Cir. 1999). Johnson
was involuntarily transferred out of the Downtown Foot and Bike
Patrol Unit (“DFBU”) to the Northside Substation. A lateral
transfer with no significant change in benefits is not an adverse
employment action. Burger v. Central Apartment Management, 168
F.3d 875, 879 (5th Cir. 1999). In Serna v. City of San Antonio,
244 F.3d 479 (5th Cir. 2001), we found that another San Antonio
police officer who was also transferred out of the DFBU to a
regular patrol unit did not suffer an adverse employment action in
the context of First Amendment retaliation. Johnson has not
produced any evidence that distinguishes his transfer out of the
DFBU to a regular patrol unit from Serna’s transfer out of the DFBU
to a regular patrol unit; as in Serna, there was insufficient
change in Johnson’s pay, benefits or level of responsibility to
constitute a demotion for the purpose of retaliation. Thus,
Johnson’s retaliation claims fail because there is no evidence that
he was subjected to an adverse employment action.
Even if Johnson had been subjected to an adverse employment
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action, his Title VII retaliation claims based on his objections to
Lt. Harry Griffin’s alleged orders to discriminate against San
Antonio residents would fail because the actions complained of were
not “unlawful employment practices” under Title VII. See 42 U.S.C.
§2000e-3 (emphasis added). The discrimination at issue in this
charge affected the citizens of San Antonio, who were not San
Antonio Police Department employees. Thus, Johnson’s opposition to
Griffin’s orders does not constitute a protected activity under
Title VII.
Similarly, Johnson’s hostile environment claim based on his
opposition to Griffin’s orders cannot succeed because it does not
involve discrimination with respect to Johnson’s “compensation,
terms, conditions, or privileges of employment, because of such
individual’s race, color, religion, sex or national origin.” 42
U.S.C. § 2000e-2(a)(emphasis added). Instead, this charge concerns
the San Antonio Police Department’s discrimination because of
Johnson’s opposition to Griffin’s orders.
Finally, Johnson argues that he was subjected to a hostile
work environment based on his race. While Johnson introduced some
evidence that Lt. Griffin ridiculed and attempted to intimidate
him, he fails to make a prima facie case on the claim of hostile
work environment because there was no evidence that any of the
discrimination was related to Johnson’s race. See Walker v.
Thompson, 214 F.3d 615, 625 (5th Cir. 2000) (listing “racially
discriminatory intimidation, ridicule and insults” as an element of
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a hostile work environment claim). After reviewing the record, we
agree with the district court’s conclusion that Johnson’s “problems
with Lt. Griffin would appear to have extended across the board and
not to have centered around race.” The City was therefore also
entitled to summary judgment on Johnson’s Title VII hostile work
environment claim.
Because we find no genuine issue of material fact on Johnson’s
Title VII retaliation and hostile work environment claims, the City
is entitled to judgment as a matter of law. The district court’s
judgment is therefore
A F F I R M E D.
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