A continuing, unresolved issue under Title VII is what constitutes discrimination in “terms, conditions, or privileges of employment.” Most courts require proof of a “materially adverse employment action,” which can include – by way of example – being placed on an onerous schedule or subjected to unhealthful conditions. But the Fifth Circuit has long required proof of a more exacting “ultimate” employment decision, e.g., “hiring, firing, demoting, promoting, granting leave, and compensating.” In yesterday’s 2-1 decision, though, a panel of the court holds that a material diminution of duties not otherwise accompanied by a change in title or pay may be actionable.
Thompson v. City of Waco, Tex., No. 13-50718 (5th Cir. Sept. 3, 2014): The case was decided on a motion to dismiss the complaint, and so the facts are sparely presented. Detective Thompson, identified as African-American, and two white detectives were suspended for the same violation (falsifying timesheets). When they returned to duty, Thompson – but not the white detectives – endured various restrictions:
“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.”
Thompson alleged that these duties represent “integral and material responsibilities of a detective,” and constitute a demotion. He further alleged that the diminished responsibilities rendered his position “less prestigious, will hinder his opportunities for advancement, and is less interesting.”
The district court granted the city’s motion to dismiss, holding that because the reduction in duties did not culminate in an “ultimate employment decision,” they were not actionable under Title VII or § 1981.
The Fifth Circuit reverses. The panel majority notes that under the circuit’s “ultimate employment decision” standard, the cases draw a dividing line between “a transfer or reassignment” that is the equivalent of a demotion – thus an “ultimate” action – and a lesser “loss of some job responsibilities,” without any change in “title, pay, and benefits.” The district court and the city stated that Thompson’s complaint fell on the “loss of some job responsibility” side of the line.
The panel majority holds that Thompson’s complaint plausibly alleged an “ultimate” decision:
“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.”
Although the city maintained that Thompson did not allege a forced transfer or reassignment, but just a loss of duties, the panel found that detail immaterial: “the City’s proposed distinction is formalistic, easily manipulated, and has not been adopted by courts. In both scenarios [reassignment or loss of duties], the employee may effectively occupy a new and objectively worse position, with
significantly diminished material responsibilities.”
In dissent, Judge Smith would hold that absent a formal change in Thompson’s job, there was no claim of discrimination in “terms, conditions, or privileges of employment” under the Fifth Circuit’s “ultimate” decision standard:
“The majority errs in holding that Thompson’s alleged loss of job responsibilities meets this exacting standard. By importing the lower ‘materially adverse’ employment-actions standard of our sister circuits, the majority sub silentio overrules our requirement of an ultimate employment action. Essentially, under the majority’s notion, even the restriction of job duties may now be deemed a sufficient employment action where the plaintiff merely alleges that the restrictions are ‘material.’ Although that approach might be appropriate under the law as it has been interpreted by other courts of appeals, it is not the law here, at least not until today.”
The decision sets up the prospect of an en banc rehearing that might finally scuttle the Fifth Circuit’s “ultimate employment decision” standard, and bring the circuit in line with other courts of appeals.