                                                                                 FILED
                                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                         Tenth Circuit

                             FOR THE TENTH CIRCUIT                        November 7, 2019
                         _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
 RUBYE L. DAVIS,

       Plaintiff - Appellant,

 v.                                                          No. 18-3199
                                                   (D.C. No. 2:15-CV-09160-KHV)
 UNIFIED SCHOOL DISTRICT NO. 512,                             (D. Kan.)
 a/k/a Shawnee Mission School District;
 GINNY LYON; JOHN McKINNEY,

       Defendants - Appellees.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before MATHESON, McHUGH, and CARSON, Circuit Judges.
                 _________________________________

      In this employment discrimination case, Rubye L. Davis appeals from a district

court order that entered summary judgment in favor the defendants. Our jurisdiction

arises under 28 U.S.C. § 1291. We affirm.




      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                       Background

       Ms. Davis, an African-American woman, worked in Kansas as a science teacher

for Unified School District No. 512. From 2007 to 2015, she taught biology and human

anatomy/physiology at Shawnee Mission East High School (Mission East). She also

sponsored the Brain Bee program, a biology contest and networking forum for students.

       In March 2015, Principal John McKinney and Certified Professional Staff Director

Ginny Lyon reassigned Ms. Davis to Shawnee Mission West High School (Mission

West), which has a higher percentage of minority students than Mission East. Although

her salary and benefits were to remain the same, she was given less advanced biology

classes to teach and she could no longer sponsor Brain Bee. Further, Mission West “had

a serious student disciplinary problem.” Aplt. App. at 154.

       Before the 2015-16 school year began, Ms. Davis resigned and filed a 42 U.S.C.

§ 1983 suit against the School District, Principal McKinney, and Director Lyon. She

alleged that her reassignment constituted racial discrimination in violation of 42 U.S.C.

§ 1981 and that the School District ratified her discriminatory reassignment.1 The

defendants moved for summary judgment.




       1
        As the parties are familiar with this case, we need not recount the lengthy
procedural history of this case that ultimately culminated in Ms. Davis’s civil-rights
suit against the instant defendants.

                                             2
       Applying the familiar McDonnell Douglas burden-shifting framework,2 the district

court determined that while “the record presents a genuine fact issue whether reassigning

[Ms. Davis] to teach at [Mission West] constituted adverse employment action,” Aplt.

App. at 258, Principal McKinney and Director Lyon were entitled to qualified immunity

because it was not clearly established that the reassignment was an adverse employment

action. The district court further concluded that Ms. Davis failed to show a triable issue

as to whether the School District ratified Principal McKinney and Director Lyon’s

reassignment decision. Accordingly, the district court entered summary judgment in the

defendants’ favor.

                                       Discussion
                                 I. Standards of Review

       “We review the district court’s summary judgment decision de novo, applying the

same standards as the district court.” Punt v. Kelly Servs., 862 F.3d 1040, 1046 (10th Cir.

2017). Summary judgment is required when “there is no genuine dispute as to any




       2
         The framework applies in cases lacking direct evidence of discrimination,
and it requires the plaintiff to initially establish a prima facie case of discrimination.
Garrett v. Hewlett-Packard Co., 305 F.3d 1210, 1216 (10th Cir. 2002). That means
the plaintiff must “show, by a preponderance of the evidence, that she is a member of
a protected class, she suffered an adverse employment action, and the challenged
action occurred under circumstances giving rise to an inference of discrimination.”
Bennett v. Windstream Commc’ns, Inc., 792 F.3d 1261, 1266 (10th Cir. 2015). If the
plaintiff meets the prima-facie-case requirements, the burden then shifts to her
employer to articulate a legitimate, nondiscriminatory reason for the adverse
employment action. Id. If the employer does so, the burden then shifts back to the
plaintiff to proffer evidence that the employer’s stated reason for its decision is
pretextual. Id.
                                             3
material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a).

         “When a defendant asserts qualified immunity at summary judgment, the burden

shifts to the plaintiff, who must clear two hurdles in order to defeat the defendant’s

motion.” Riggins v. Goodman, 572 F.3d 1101, 1107 (10th Cir. 2009). First, “[t]he

plaintiff must demonstrate on the facts alleged . . . that the defendant violated h[er]

constitutional or statutory rights.” Id. Second, the plaintiff must show “that the right was

clearly established at the time of the alleged unlawful activity.” Id. “If, and only if, the

plaintiff meets this two-part test does a defendant then bear the traditional burden of the

movant for summary judgment—showing that there are no genuine issues of material fact

and that he or she is entitled to judgment as a matter of law.” Nelson v. McMullen,

207 F.3d 1202, 1206 (10th Cir. 2000) (internal quotation marks omitted).

                              II. Adverse Employment Action

         An “[a]dverse employment action includes [a] significant change in employment

status, such as hiring, firing, failing to promote, reassignment with significantly different

responsibilities, or a decision causing a significant change in benefits.” Piercy v. Maketa,

480 F.3d 1192, 1203 (10th Cir. 2007) (internal quotation marks omitted). There must be

something more than “a mere inconvenience or an alteration of job responsibilities.” Id.

(internal quotation marks omitted).

         We agree with the district court—the law is not clearly established that a

reassignment such as Ms. Davis’s constitutes an adverse employment action. “A right is

clearly established when every reasonable official would understand that what he is doing

                                               4
violates that right.” Lincoln v. Maketa, 880 F.3d 533, 537 (10th Cir. 2018) (brackets and

internal quotation marks omitted). “[T]he key is whether the specific conduct has been

clearly established as a constitutional violation.” Id. (emphasis added). “Accordingly,

we usually require an applicable Supreme Court or Tenth Circuit opinion or the clear

weight of authority from other courts treating the conduct as unconstitutional.” Id.

Although we do “not require a case directly on point for a right to be clearly established,

existing precedent must have placed the statutory or constitutional question beyond

debate.” White v. Pauly, 137 S. Ct. 548, 551 (2017) (per curiam) (internal quotation

marks omitted).

       The Supreme Court has not addressed a reassignment with these characteristics,

and it has observed in the context of retaliatory reassignment, “To be sure, reassignment

of job duties is not automatically actionable.” Burlington N. & Santa Fe Ry. Co. v.

White, 548 U.S. 53, 71 (2006). The Tenth Circuit has addressed similar discriminatory-

reassignment claims, reaching different results that would not clearly establish the § 1981

liability of Principal McKinney and Director Lyon. Compare Jones v. Okla. City Pub.

Sch., 617 F.3d 1273, 1275, 1279-80 (10th Cir. 2010) (holding there was adverse

employment action where school district reassigned “Executive Director of Curriculum

and Instruction” to elementary school principal, reduced her vacation benefits

immediately, and reduced her salary and retirements benefits after one year), with

Sanchez v. Denver Pub. Sch., 164 F.3d 527, 532 (10th Cir. 1998) (holding there was no

adverse employment action where a fourth-grade teacher was reassigned to a school

farther from her home to teach second grade, but paid the same salary and benefits).

                                             5
Similarly, the clear weight of authority from other courts does not render Ms. Davis’s

reassignment beyond debate as an adverse employment action. See, e.g., Campbell v.

Haw. Dep’t of Educ., 892 F.3d 1005, 1011, 1015 (9th Cir. 2018) (holding that teacher’s

assignment to teach remedial math classes, a subject for which she was not certified, was

not an adverse employment action); Dass v. Chi. Bd. of Educ., 675 F.3d 1060, 1070

(7th Cir. 2012) (holding that teacher’s “assignment to teach seventh grade rather than

third grade” was not an adverse employment action even though seventh grade may have

been more difficult to teach and the students “may have been more unruly than third-

grade students”); Galabya v. N.Y. City Bd. of Educ., 202 F.3d 636, 641 (2d Cir. 2000)

(holding that teacher’s reassignment from a “special education, junior high school

keyboarding class” to a “mainstream high school keyboarding class” was not an adverse

employment action, as there was no evidence reassignment could “constitute a setback to

the plaintiff’s career”), abrogation on other grounds explained in Davis-Garett v. Urban

Outfitters, Inc., 921 F.3d 30, 43-44 (2d Cir. 2019); but see Jones v. Sch. Dist. of Phila.,

198 F.3d 403, 412 (3d Cir. 1999) (reassignment of physics teacher to a school where he

taught “less desirable science classes” and then to a “difficult school” established a prima

facie case of adverse employment action).

       Ms. Davis asserts that she does not need an adverse employment action to avoid

qualified immunity because “[t]o rule otherwise would be a resurgence of the odious

doctrine of ‘separate but equal’ which was long ago cast into the ash can of history by the

Supreme Court.” Aplt. Opening Br. at 17. But she provides no supporting authority, and

we “will not consider issues adverted to in a perfunctory manner, unaccompanied by

                                              6
some effort at developed argumentation.” Armstrong v. Arcanum Grp., Inc., 897 F.3d

1283, 1291 (10th Cir. 2018) (ellipsis and internal quotation marks omitted).

       We conclude that the district court properly entered summary judgment in favor of

Principal McKinney and Director Lyon on the basis of qualified immunity.

                                       II. Ratification

       Qualified immunity is not available to the school district, “a quasi-municipal

agency.” Seamons v. Snow, 206 F.3d 1021, 1029 (10th Cir. 2000). Nevertheless, “to

prove a § 1983 claim against a municipality, a plaintiff must show the existence of a

municipal policy or custom which directly caused the alleged injury.” Pyle v. Woods,

874 F.3d 1257, 1266 (10th Cir. 2017). One way such a policy or custom comes into play

is where “final policymakers” have ratified “the decisions of subordinates to whom

authority was delegated.” Id.

       Ms. Davis argues that the School District ratified Principal McKinney and

Director Lyon’s reassignment decision. She reasons that ratification occurred when her

attorney sent a letter to the School District asking that she not be reassigned, and the

School District’s counsel responded:

       Transferring Ms. Davis to Shawnee Mission West was deemed necessary
       and in the best interests of the [D]istrict and its students. The District
       denies that any other reasons exist for her transfer.
              ...
              Accordingly, Ms. Davis has no legal claim against the District. Her
       qualifications, skills, and other assets do not depend on her current teaching
       position. They do not give her a legal right to keep it.
Aplt. App. at 123.


                                              7
       The district court concluded that counsel’s response did not create a triable issue

as to ratification because there was no evidence that the District had “authorized counsel

to ‘speak with final policymaking authority.’” Id. at 264 n.13 (quoting McMillian v.

Monroe Cty., 520 U.S. 781, 784-85 (1997)).

       We agree with the district court. Ms. Davis identifies no evidence that the School

District’s counsel “possessed the authority to make final policy decisions concerning the

transfer of school district personnel.”3 Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 738

(1989).

       AFFIRMED.
                                              Entered for the Court


                                              Joel M. Carson III
                                              Circuit Judge




       3
         Indeed, Ms. Davis’ brief is devoid of even a single record citation showing
that the District ratified her reassignment. And we will not sift through the record to
find factual support for her arguments. United States v. Rodriguez-Aguirre, 108 F.3d
1228, 1237 n.8 (10th Cir. 1997).
                                             8
