     Case: 09-10826     Document: 00511200504          Page: 1    Date Filed: 08/11/2010




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

                                                  FILED
                                                                           August 11, 2010

                                       No. 09-10826                         Lyle W. Cayce
                                                                                 Clerk

STORMY MAGIERA,

                                                   Plaintiff - Appellant
v.

CITY OF DALLAS,

                                                   Defendant - Appellee




                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:08-CV-1023


Before DAVIS, SMITH, and HAYNES, Circuit Judges.
PER CURIAM:*
        Stormy Magiera appeals the district court’s grant of summary judgment
in favor of the City of Dallas (“the City”) on her retaliation claim. We REVERSE
the district court’s grant of summary judgment and REMAND for further
proceedings on the limited question of whether the City retaliated against
Magiera for complaining of sexual harassment by removing her from field
training officer duties. In all other respects, we AFFIRM.
                         I. Factual & Procedural Background

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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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      Magiera was hired by the City as a police officer in September 2000. On
May 21, 2005, Magiera responded to the sound of a gunshot being fired in the
parking lot of a nightclub. Sergeant Dexter Ingram arrived at the scene shortly
thereafter and, while attempting to restore order, referred to Magiera as
“darling” and touched her arm. After Magiera asked Sergeant Ingram to refrain
from calling her “darling” or touching her, Sergeant Ingram turned to Sergeant
Kevin Harris, Magiera’s supervisor, and said, “come talk to your girl [be]cause
I can’t.” Officer Magiera asked Sergeant Harris for a control number to file a
complaint with Internal Affairs. Sergeant Harris refused. Later that evening,
Sergeant Harris and Sergeant Richard Forness removed Magiera from patrol
duties and informed her that she could be sent home for requesting a control
number. Magiera went home on leave. The next day, Magiera filed a complaint
with Internal Affairs, alleging sexual harassment and retaliation. According to
Magiera, word of her complaint spread around the department, and other
officers began treating her poorly.
      On February 27, 2006, Magiera filed a charge of discrimination and
retaliation with the EEOC. After receiving notice of her right to sue from the
EEOC, Magiera filed the instant action in state court, asserting that the City
subjected her to retaliation in violation of Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e et seq., and the Texas Commission on Human Rights Act
of 1983, Texas Labor Code § 22.001 et seq.1 The City timely removed the action
to federal court.
      Magiera twice amended her complaint, alleging that, after she complained
of sexual harassment and retaliation, other officers began “clicking” her over the
radio and refused to partner with her; she was denied overtime assignments; she


      1
        Magiera also claimed that she was subjected to sexual harassment and that the City
deprived her of substantive due process by interfering with her employment. Magiera has
since abandoned those claims and alleges only retaliation on appeal.

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was subjected to unnecessary questioning and intimidation when she applied for
lateral transfers; she was never given detective work; she was subjected to more
intense scrutiny in Internal Affairs investigations; and she was denied the
opportunity to work as a field training officer (“FTO”).
        The City moved for summary judgment. The district court concluded that
Magiera had failed to show that she suffered a materially adverse action, that
retaliation was the cause-in-fact of her alleged injuries, or that the City’s
proffered legitimate, non-discriminatory reasons for the retaliatory actions were
pretextual. The district court then granted the City’s motion for summary
judgment. Magiera timely filed the instant appeal.
                                II. Standard of Review
        We review a district court’s grant of summary judgment de novo. Stewart
v. Miss. Transp. Comm’n, 586 F.3d 321, 327 (5th Cir. 2009). When reviewing a
grant of summary judgment, we view all facts and evidence in the light most
favorable to the non-moving party. United Fire & Cas. Co. v. Hixson Bros., Inc.,
453 F.3d 283, 285 (5th Cir. 2006). However, to avoid summary judgment, the
non-movant must go beyond the pleadings and come forward with specific facts
indicating a genuine issue for trial. Piazza’s Seafood World, LLC v. Odom, 448
F.3d 744, 752 (5th Cir. 2006).
                                     III. Discussion
A.      Evaluative Framework
        The parties agree that this case is governed by the familiar burden-
shifting framework set forth in McDonnell Douglas Corporation v. Green, 411
U.S. 792, 802-03 (1973).2 Under that framework, a plaintiff establishes a prima


        2
        In her briefs, Magiera argues that she has presented direct evidence of retaliation;
however, at oral argument, Magiera’s attorney stated that Magiera was seeking recovery
solely under a McDonnell Douglas theory of liability. For that reason, we consider the
purported direct evidence of retaliation as part of her McDonnell Douglas claim and do not
evaluate this evidence under any other theory of liability.

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facie case of retaliation by showing that: “(1) she participated in a Title VII
protected activity, (2) she suffered an adverse employment action by her
employer, and (3) there is a causal connection between the protected activity and
the adverse action.” Stewart, 586 F.3d at 331. If the plaintiff makes out a prima
facie case of retaliation, the burden shifts to the employer to articulate a
legitimate, non-discriminatory reason for the employment action. Aryain v. Wal-
Mart Stores Tex. LP, 534 F.3d 473, 484 (5th Cir. 2008). If the employer satisfies
its burden of production, the plaintiff must prove that the City’s proffered
legitimate, non-discriminatory reason is pretext for a retaliatory purpose. Id.
In doing so, the plaintiff must prove that “the adverse employment action taken
against [her] would not have occurred ‘but for’ her protected conduct.” Septimus
v. Univ. of Houston, 399 F.3d 601, 608 (5th Cir. 2005).
B.      Summary Judgment Was Properly Granted on Five of the Six Grounds
        Magiera asserts that she suffered retaliation for complaining of sexual
harassment when (1) her supervisors sent her home from work after she
requested a control number; (2) other officers “clicked” her on the radio and
refused to partner with her; (3) Internal Affairs investigated complaints lodged
against her with heightened scrutiny; (4) she was treated more harshly in
interviews and denied lateral transfers; (5) she was denied overtime
assignments; and (6) she was denied the opportunity to serve as an FTO.
        The first five of these actions are not materially adverse actions.3 To
demonstrate that a retaliatory action was “materially adverse,” Magiera must
show that the action “might have dissuaded a reasonable worker from making

       3
          Magiera erroneously asserts that the question of material adversity is always for the
jury to decide. While a determination of material adversity is dependent upon the
circumstances, we have frequently held, as a matter of law, that a challenged action is not
materially adverse. See Stewart, 586 F.3d at 332 (“As a matter of law, . . . these allegations
do not rise to the level of material adversity but instead fall into the category of ‘petty slights,
minor annoyances, and simple lack of good manners’ that the Supreme Court has recognized
are not actionable retaliatory conduct.”) (citation omitted).

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or supporting a charge of discrimination.” Burlington N. & Santa Fe Ry. Co. v.
White, 548 U.S. 53, 68 (2006) (internal quotation marks and citation omitted).
The materiality standard is intended “‘to separate significant from trivial harms’
and ‘filter out complaints attacking the ordinary tribulations of the workplace,
such as the sporadic use of abusive language, gender-related jokes, and
occasional teasing.’” Stewart, 586 F.3d at 331 (quoting Burlington, 548 U.S. at
68)). Even if the employer took an adverse action with the intent to retaliate
against the employee, the adverse action must satisfy the materiality
requirement to be actionable. Id. Whether an alleged act of retaliation is
material depends upon the particular circumstances. Burlington, 548 U.S. at
69.
       On their face, the first three acts of alleged retaliation fail to satisfy the
materiality standard.4       With respect to the fourth and fifth, although being
denied lateral transfer opportunities and overtime assignments could be a
materially adverse action, Mageria produced no evidence regarding the positions
that she applied for, the dates that she submitted applications, or any
explanation why the denial of these opportunities negatively affected her status,
benefits, prestige, or responsibilities. See Douglass v. United Servs. Auto Ass’n,
79 F.3d 1415, 1429 (5th Cir. 1996) (en banc) (“In short, conclusory allegations,
speculation, and unsubstantiated assertions are inadequate to satisfy the
nonmovant’s burden [on summary judgment in an employment discrimination
case].”). While this court has recognized that a lateral transfer, under certain


       4
         While this court has recognized that being sent home on administrative leave may
constitute a materially adverse action, see McCoy v. City of Shreveport, 492 F.3d 551, 560-61
(5th Cir. 2007), Mageria conceded in her deposition that she was never placed on
administrative leave for requesting a control number and that no disciplinary action was taken
by the City. Because we conclude that Magiera did not suffer a materially adverse action
when she was sent home from work, we need not address the City’s argument that Magiera
did not engage in protected activity when she requested a control number from her supervisor.


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circumstances, may be an adverse action, Aryain, 534 F.3d at 485, there is no
evidence that Magiera suffered such an adverse action here. See Stewart, 586
F.3d at 332 (“Stewart’s reassignment affected none of her job title, grade, hours,
salary, or benefits. Her duties were unchanged, and there is no evidence that
she suffered a diminution in prestige or change in standing among her co-
workers.”). Accordingly, we conclude that Magiera has failed to establish a
prima facie case of retaliation for these actions.
C.      Summary Judgment Should Have Been                  Denied   on    the Sixth
        Ground—Magiera’s Removal from FTO Duties

        In contrast, the sixth ground—the City’s decision to remove Magiera from
FTO     duties—was    a   materially   adverse   action.     Magiera     introduced
evidence—and the City conceded at oral argument—that she received less
compensation as a result of being removed from FTO duties. Because the parties
agree that the decision to remove Magiera from FTO duties constitutes a
materially adverse action, we focus the remainder of our inquiry on whether
Magiera has presented sufficient evidence from which a reasonable jury could
conclude that the City removed her from FTO duties because she complained of
sexual harassment.
        1. Magiera’s Prima Facie Case
        Magiera asserts that she was removed from FTO duties because her
supervisor, Lieutenant Dale Barnard, learned that she had filed a Title VII
lawsuit. In support of this assertion, Magiera presented the statement of
Sergeant Kay White, who testified that she was told by her supervisor,
Lieutenant Michael Woodbury, that Magiera was not serving as an FTO because
Lieutenant Barnard was angry that Magiera had filed a discrimination lawsuit.
Magiera also asserts that White sent her a text message stating, “I was told by
[W]oodbury that [B]arnard said you had a law suit against the city and you
shouldnt [sic] train because of the suit.” According to Magiera, these statements

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prove that she was removed from FTO duties because she filed a Title VII
complaint.
       The City asserts that White’s statement is not competent summary
judgment evidence because it is based on hearsay. See Warfield v. Byron, 436
F.3d 551, 559 (5th Cir. 2006) (hearsay evidence is inadmissible for summary
judgment purposes under Federal Rule of Civil Procedure 56).                      For the
statement to be admissible, Sergeant White would have to testify to what she
was told by Lieutenant Woodbury that Lieutenant Barnard told him. This
testimony would be “double hearsay” unless each statement were not hearsay
or were subject to a hearsay exception.          M agiera asserts that W hite’s
statement is admissible as non-hearsay because each of the statements is an
admission by a party-opponent. See F ED. R. E VID. 801(d)(2)(D) (stating that
admissions by a party-opponent are not hearsay if “[t]he statement is offered
against a party and is . . . a statement by the party’s agent or servant concerning
a matter within the scope of the agency or employment, made during the
existence of the relationship”).
       We agree. Lieutenant Barnard’s statement, if true, is admissible under
the party-opponent exception because Lieutenant Barnard was speaking in the
course of his employment.5             Magiera asserts—and the City does not
dispute—that Woodbury and White were tasked with assigning eligible officers
to particular FTO shifts. Therefore, their discussion regarding why Officer
Magiera was prohibited from training may be considered “a matter within the
course of their agency or employment,” rather than mere water-cooler gossip.
See Wilkerson v. Columbus Separate Sch. Dist., 985 F.2d 815, 818 & n.11 (5th


      5
          The parties dispute whether Lieutenant Barnard made the ultimate decision to
remove Magiera from FTO duties. The City argues that Deputy Chief Easterling was the
final decisionmaker regarding Magiera’s removal from field training duties. Nonetheless, the
City concedes that Lieutenant Barnard was involved in the decision to remove Magiera from
FTO duties.

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Cir. 1993) (holding that statements by school employees containing otherwise
double hearsay were admissible under Federal Rule of Evidence 801(d)(2)(D) as
admissions by agents of the school). Considering this evidence in the light most
favorable to Magiera, we conclude that she has established a prima facie case of
retaliation on this ground.6
       2. The City’s Proffered Legitimate, Non-Discriminatory Reasons
       In response, the City asserts that Magiera was removed from FTO duties
for medical reasons and because she lacked the proper temperament to serve as
a training officer. The City presented the testimony of Deputy Chief Easterling
in support of its claim that Magiera was removed from FTO duties because she
had suffered two seizures and was on non-driving status. The City also
presented the testimony of Lieutenant Barnard who stated that he
recommended Magiera be removed from training because of her seizures and
because she lacked the proper temperament to serve as an FTO. We conclude
that these reasons, if true, would be legitimate, non-discriminatory reasons.
       3. Magiera’s Showing of Pretext
       Magiera argues that the City’s proffered legitimate, non-discriminatory
reasons for removing her from FTO duties are pretextual.                      In particular,
Magiera asserts that the City’s reasons lack credibility because she was allowed
to serve as an FTO after she had suffered seizures and was placed on non-
driving status.     Indeed, Magiera argues that she was allowed to serve as an
FTO even after Lieutenant Barnard recommended that she be prohibited from



       6
         The district court never explicitly ruled on the admissibility of these statements. Our
conclusion today that the evidence, as it is contained in the record and argued before this
court, is competent summary-judgment evidence is not intended to foreclose a future ruling
on the admissibility of such testimony at trial or in other further proceedings in the context
of future-developed facts and the issues presented at such proceedings. Similarly, our
conclusion today does not establish the authenticity of the text message allegedly sent from
White to Magiera; instead, we conclude that White’s statement to Magiera may be considered
in evaluating whether the district court’s grant of summary judgment was proper.

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serving as an FTO because of her alleged poor temperament and medical
condition. Magiera points out that it was not until three days after the City was
served with her Title VII complaint that she was removed from her duties as an
FTO.       According to Magiera, the logical inference from this evidence is that
Lieutenant Barnard learned of Magiera’s complaint and chose to retaliate
against her by removing her from FTO duties.
       This court has observed that “the combination of suspicious timing with
other significant evidence of pretext[ ] can be sufficient to survive summary
judgment.” Shackelford v. Deloitte & Touche, LLP, 190 F.3d 398, 409 (5th Cir.
1999). In this case, the close timing between the filing of Magiera’s Title VII
complaint and her removal from FTO duties, combined with the fact that she
was initially allowed to serve as an FTO, is sufficient to create a genuine issue
of material fact on the falsity of the City’s proffered justifications for removing
Magiera from FTO duties.7 The fact that Magiera was given an FTO shift after
the City learned of her seizures and after Lieutenant Barnard questioned her
temperament creates a genuine issue of material fact as to whether the City
removed Magiera from FTO duties for these proffered reasons. Accordingly, the
district court erred by granting the City summary judgment on Magiera’s claim
that the City retaliated against her by removing her from FTO duties.
                                     IV. Conclusion
       Because we conclude that a genuine issue of material fact exists as to
whether the City retaliated against Mageria for filing a Title VII complaint by
removing her from FTO duties, we REVERSE the district court’s grant of



       7
        Magiera also argues that the City’s proffered medical justification for removing her
from FTO duties is pretextual because two other officers were allowed to serve as FTOs after
suffering seizures. We need not decide whether the other two officers are similarly situated
to Magiera because we conclude that Magiera has presented sufficient evidence at this stage
from which a jury could reasonably conclude that the City’s proffered reasons for removing her
from FTO duties are pretextual.

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summary judgment and REMAND for further proceedings on this narrow issue;
we AFFIRM the remainder of the district court’s judgment.




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