     Case: 09-30764 Document: 00511290840 Page: 1 Date Filed: 11/10/2010




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                         November 10, 2010

                                       No. 09-30764                         Lyle W. Cayce
                                                                                 Clerk

DIANA THOMAS,

                                                   Plaintiff-Appellant
v.

DAVID KENT, Individually and as an employee of the City of Shreveport;
CITY OF SHREVEPORT; RICHARD SALLEY, Individually and as an
employee of the City of Shreveport,

                                                   Defendants-Appellees




                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 5:06-cv-1078


Before DAVIS, WIENER, and DENNIS, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Diana Thomas, a Shreveport police officer, filed this
suit in the district court seeking recovery for race and gender discrimination and
retaliation under Title VII, 42 U.S.C. § 1981, 42 U.S.C. § 1983, and several
provisions of the United States Constitution and Louisiana law against
Defendants-Appellees Thomas Kent and Richard Salley, employees of the



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
    Case: 09-30764 Document: 00511290840 Page: 2 Date Filed: 11/10/2010



                                  No. 09-30764

Shreveport Police Department, and against the City of Shreveport itself.
Thomas alleged that Defendants failed to promote her to a position in the Crime
Scene Investigation Unit (“CSIU”) and retaliated against her for discriminatory
reasons. The district court granted partial summary judgment in favor of the
Defendants on the retaliation claim and the discrimination claim went to trial.
After trial, the jury returned a verdict denying Thomas relief on her
discrimination claim. The jury found that the CSIU position Thomas sought was
a purely lateral transfer and, therefore, that Thomas did not suffer an adverse
employment action, which is a prima facie element of her discrimination claim
for failure to promote. See Alvarado v. Texas Rangers, 492 F.3d 605, 612 (5th
Cir. 2007) (“It is well established that the denial of a purely lateral transfer is
not an adverse employment action redressible under Title VII.”).
      On this appeal, Appellant challenges the sufficiency of the evidence
supporting the jury’s verdict. Thomas, however, admittedly failed to file a
motion for judgment as a matter of law before or after the verdict. We cannot
review the sufficiency of the evidence supporting a jury’s verdict unless the
appealing party made a motion for judgment as a matter of law under Federal
Rule of Civil Procedure 50(a) prior to submitting the issue to the jury and, after
the verdict, filed either a Rule 50(b) motion for judgment as a matter of law or
a Rule 59 motion for a new trial. Unitherme Food Sys., Inc. v. Swift-Eckrich,
Inc., 546 U.S. 394, 401-02 (2006); Downey v. Strain, 510 F.3d 534, 543-44 (5th
Cir. 2007) (describing the Unitherme decision). Where a party has failed to
preserve the issue of sufficiency of the evidence for appellate review by failing
to file the requisite motions, “the question before this Court is not whether there
was substantial evidence to support the jury verdict, but whether there was any
evidence to support the jury verdict.” Shepherd v. Dallas County, 591 F.3d 445,
456 (5th Cir. 2009) (internal quotation marks and citation omitted).



                                        2
     Case: 09-30764 Document: 00511290840 Page: 3 Date Filed: 11/10/2010



                                       No. 09-30764

       Thus, if any evidence supports the jury’s verdict that the CSIU position
was a purely lateral transfer for Thomas, we must affirm. Our review of the
record reveals that the verdict is supported by ample evidence. For example, the
jury heard testimony from a number of witnesses in the police department to the
effect that the CSIU job was generally considered a lateral transfer within the
department. The evidence before the jury also established that the base salary,
benefits, and rank of the CSIU job were the same as Thomas’s old position.
Further, the jury was presented with evidence showing that during the relevant
years Thomas earned roughly the same amount of overtime compensation as the
individual hired for the CSIU job, and this evidence established that in the
critical year of 2003 there was only an approximate $400 difference in their
overtime earnings. In any event, notwithstanding counsel’s arguments that a
demonstrable difference in overtime compensation would require reversal of the
jury’s verdict, compensation is not dispositive but is only one of many factors in
determining whether a position is considered a purely lateral transfer rather
than an objectively better position. Alvarado, 492 F.3d at 614. Therefore, ample
evidence supports the jury’s verdict.1
       Thomas also challenges the district court’s grant of partial summary
judgment on the retaliation claim. Thomas argued to the district court that
Salley, her supervisor, filed a grievance against her stating his opinion that she
was being insubordinate and intentionally vexatious in her complaints about not
being given the CSIU job. She argued that the grievance was in retaliation for

       1
          Thomas challenges several of the district court’s evidentiary rulings. As the jury was
required to find whether Thomas suffered an adverse employment action as an element of her
discrimination claim, we deny most of her evidentiary challenges as moot. Evidence relating
to the “work environment” of the officer hired for the CSIU position, however, was relevant
to the issue whether the difference between Thomas’s old position and the CSIU position were
material, and thus should have been admitted. When we view the record evidence as a whole,
we perceive a surfeit of evidence that hers was a purely lateral transfer and conclude that
exclusion of these relatively minor details was harmless error.


                                               3
    Case: 09-30764 Document: 00511290840 Page: 4 Date Filed: 11/10/2010



                                 No. 09-30764

her complaints. On our de novo review, we conclude that the summary judgment
evidence reveals that the grievance had no adverse effect on Thomas. It did not
go in her personnel file or otherwise have any adverse effect on her employment.
To amount to retaliation, Burlington Northern requires that the action must be
such that it would “dissuade a reasonable worker from making or supporting a
charge of discrimination.” Burlington Northern & Santa Fe Ry. Co. v. White, 548
U.S. 53, 68 (2006). Thomas produced no summary judgment evidence that this
completely internal memorandum had such an effect.
      In sum, we are satisfied that the jury’s finding that the CSIU position
Appellant sought was a purely lateral transfer is supported by more than enough
evidence to meet our standard of review here. Shepherd, 591 F.3d at 456. We
also agree with the district court’s grant of summary judgment on Thomas’s
retaliation claim.    For these reasons, the district court’s judgment is
AFFIRMED.




                                       4
