     Case: 13-50936      Document: 00512865785         Page: 1    Date Filed: 12/11/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 13-50936                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
CRYSTAL DAWN WEBB,                                                      December 11, 2014
                                                                           Lyle W. Cayce
              Plaintiff - Appellant                                             Clerk

v.

ROUND ROCK INDEPENDENT SCHOOL DISTRICT,

              Defendant - Appellee



                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 1:12-CV-919


Before DAVIS, DENNIS, and COSTA, Circuit Judges.
PER CURIAM:*
       Crystal Dawn Webb appeals the district court’s dismissal of her
retaliation claim under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §
2000e, et seq. (“Title VII”), and the district court’s denial of her motion for




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                       No. 13-50936
appointment of counsel. 1 For the reasons that follow, we REVERSE and
REMAND for further consistent proceedings.


                                              I.
      Webb, an African-American woman employed as a night-shift custodian
for the Defendant, Round Rock Independent School District (“RRISD”), alleged
that after filing an Equal Employment Opportunity Commission (“EEOC”)
complaint of racial discrimination, she was retaliated against by being
harassed and unfairly disciplined. Her primary complaint is that she was
involuntarily transferred to another school within the district that required
her to walk sixteen miles to work, thereby jeopardizing her safety during her
commute. After unsuccessfully trying to retain pro bono counsel, Webb moved
for the appointment of counsel under 42 U.S.C. § 2000e-5(f)(1). The district
court denied her motion, and thereafter dismissed her claim with prejudice for
failure to state a claim upon which relief can be granted, pursuant to Federal
Rule of Civil Procedure 12(b)(6). On appeal, Webb contends that the district
court erred in dismissing her complaint under Rule 12(b)(6) because she
alleged a plausible claim of retaliation and the court abused its discretion in
denying her motion to appoint counsel.
                                             II.
      A district court’s ruling on a Rule 12(b)(6) motion to dismiss is reviewed
de novo. 2 “[T]o survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief that is plausible on




      1 Webb attempted to allege in her complaint a race discrimination claim under Title
VII. The district court dismissed this claim by granting Defendant’s 12(b)(6) motion. Webb
does not challenge that dismissal in this appeal.
      2   Leal v. McHugh, 731 F.3d 405, 410 (5th Cir. 2013).

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                                         No. 13-50936
its face.” 3 “Because [Webb] was proceeding pro se at the district court, [this
court must] hold [her] complaint ‘to less stringent standards than formal
pleadings drafted by lawyers.’” 4
                                               III.
       The only significant issue in this appeal is whether Webb’s allegation
that RRISD transferred her to another school in the district — which led to a
sixteen mile commute — amounts to an adverse employment action to satisfy
this element of the plaintiff’s retaliation claim.
       Webb alleged that she complained about the transfer to her supervisor
and explained that she was homeless and had to walk the sixteen miles to work
at night. RRISD declined to reverse its transfer decision. Webb also alleged
that this transfer was causally related to her protected activity—filing the
EEOC complaint. The district court on 12(b)(6) rejected this claim on the
grounds that a lateral transfer does not qualify as an adverse employment
action. 5
       It is true that Webb did not allege any reduction in pay, different hours,
or other usual factors relevant in this context, but the Supreme Court has held
that a lateral transfer can amount to an adverse employment action without
affecting these usual terms of employment. 6 In Burlington Northern & Santa
Fe Ry. v. White, the Supreme Court found a sufficient evidentiary basis to



       3   Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
       4   Hale v. King, 642 F.3d 492, 499 (5th Cir. 2011).
       5   The court noted:
       Webb cannot show that her transfer was materially adverse because Webb’s new
position did not offer less opportunities for promotion or salary increases, did not involve a
greater likelihood of termination, or the like. Accordingly, Webb’s transfer does not constitute
an adverse employment action as required to establish a prima facie case of retaliation.
       6   Burlington Northern & Santa Fe Ry. v. White, 548 U.S. 53 (2006).

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                                         No. 13-50936
support the jury’s verdict in favor of the plaintiff on her retaliation claim. The
plaintiff was employed as a “track laborer.” In response to the plaintiff filing
an EEOC complaint, her employer moved her from operating a forklift, a
position that required more qualifications, to responsibilities including
“removing and replacing [railroad] track components, transporting track
material, cutting brush, and clearing litter and cargo spillage from the right-
of-way.” 7 This reassignment to new, more strenuous job responsibilities within
the same job title was a sufficient factual basis to support the jury’s conclusion
that the transfer amounted to a retaliatory adverse employment action under
Title VII’s anti-retaliation clause, even though it did not change any of the
usual factors considered for retaliation claims. 8 The Court applied the adverse-
employment-action standard for retaliation claims requiring a showing “that a
reasonable employee would have found the challenged action materially
adverse . . . .” 9 The Court then concluded that “the significance of any given
act of retaliation will often depend upon the particular circumstances. Context
matters.” 10 The court provided two helpful examples:
      [1] A schedule change in an employee's work schedule may make
      little difference to many workers, but may matter enormously to a
      young mother with school age children. [2] A supervisor's refusal
      to invite an employee to lunch is normally trivial, a nonactionable
      petty slight. But to retaliate by excluding an employee from a
      weekly training lunch that contributes significantly to the
      employee's professional advancement might well deter a
      reasonable employee from complaining about discrimination. 11



      7   Id. at 57.
      8   Id. at 58, 71.
      9   Id. at 68.
      10   Id. at 69.
      11   Id. (internal citation omitted).

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                                 No. 13-50936
       Webb alleged that her commute was dangerous and inconvenient for her
since she had no adequate means of transportation. However, in this case we
lack context facts to evaluate whether the transfer was truly adverse — i.e.,
whether the commute was truly a significant problem for Webb and whether
the adversity was sufficiently severe to dissuade a reasonable employee under
similar circumstances from taking the protected action. Although the timeline
of events arguably supports Webb’s allegation of causation, we are also lacking
context facts regarding why RRISD transferred Webb and whether the
employer transferred Webb because of her protected action in filing the EEOC
complaint.
       We conclude that Webb sufficiently pled a claim for retaliation, and this
case should be allowed to proceed at least to the summary judgment stage.
                                      IV.
       Accordingly, we REVERSE the district court’s order dismissing Webb’s
complaint for failure to state a claim upon which relief can be granted, and
REMAND this case for further proceedings. On remand, if necessary, Webb
may renew her motion for appointment of counsel under 42 U.S.C. § 2000e-
5(f)(1).




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