                        United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                 ___________

                                 No. 96-2395
                                 ___________

Diane Ledergerber,                    *
                                      *
           Appellant,                 *
                                      *
      v.                              *   Appeal   from   the   United   States
District
                                      * Court for the Western District of
Gary Stangler; Carmen Schultze,       * Missouri.
                                      *
           Appellees.                 *
                                 ___________

                           Submitted: January 17, 1997
                               Filed: September 8, 1997
                                 ___________

Before RICHARD S. ARNOLD, Chief Judge, and ROSS and BEAM, Circuit Judges.
                               ___________

ROSS, Circuit Judge.


      Diane Ledergerber (appellant), a Caucasian income maintenance
supervisor with the Division of Family Services (DFS) of the Missouri
Department of Social Services (DSS), filed this action on February 24,
1995. She alleged that Gary Stangler, director of DSS, and Carmen Schulze,
director of DFS (appellees), discriminated against her on the basis of her
race, in violation of Title VII, 42 U.S.C. § 2000e-2; 42 U.S.C. § 1981a,
and that they retaliated against her for opposing their alleged policy of
affording deference to African-American employees, in violation of 42
U.S.C. § 2000e-
3; 42 U.S.C. § 1981a. The district court1 granted summary judgment in
favor of the appellees. We affirm.

      On March 25, 1993, sixteen African-American income maintenance
caseworkers jointly filed a charge of racial discrimination against DFS
regarding hiring and evaluation practices, probationary procedures, and
general disparate treatment.     Appellant’s name did not appear in this
charge of discrimination. On July 20, 1993, three of these caseworkers
filed a new charge of discrimination, this time asserting that appellant
had retaliated against them for filing the earlier discrimination charge
by searching a complainant’s desk in her absence, selectively enforcing
office dress code against a complainant, and reprimanding complainants for
abusing break-time privileges, while ignoring infractions of other
employees.

      After an investigation of the two discrimination charges, DSS
director Stangler found that hiring practices at the DFS office were
flawed, that caseworker case approval and probation were inconsistently
applied, and that two of the six allegations of retaliation against
appellant were substantiated, including appellant’s decision to send one
complainant home for improper office attire and her reprimand of another
complainant for failing to adhere to break-time policies.        Stangler
recommended changes in hiring, probation, and case approval practices and
mediation of disputes.     Concluding that the atmosphere in appellant’s
section was “rife with tension and dissension,” Stangler also recommended
corrective action for appellant.

      Following Stangler’s recommendation, effective November 16, 1993,
appellant’s staff of four income maintenance supervisors and their
caseworkers were replaced with a different staff of four income maintenance
supervisors and their caseworkers.      It is undisputed that appellant’s
position as an Income Maintenance Supervisor III remained




      1
      The Honorable Scott O. Wright, Senior United States District Judge for the
Western District of Missouri.

                                      -2-
unchanged, and that her basic responsibilities and staff size remained
substantially the same.

      Appellant subsequently filed suit, asserting that the replacement of
her staff and the placement in her file of a statement that discriminatory
practices would not be tolerated constituted discrimination on the basis
of her race, as well as retaliation against her for opposing appellees’
alleged policy of giving deference to African-American employees.       The
district court determined that appellant had established a prima facie case
of discrimination, but ultimately concluded that appellant’s claim must
fail because appellant was unable to show that the appellees’ actions were
taken on the basis of race or retaliation.

      In reviewing a grant of summary judgment, this court applies the
same standard as the district court and views the facts in the light most
favorable to the non-moving party, giving that party the benefit of all
reasonable inferences to be drawn from those facts. Harlston v. McDonnell
Douglas Corp., 37 F.3d 379, 382 (8th Cir. 1994).

      A Title VII plaintiff has the initial burden of establishing by a
preponderance of the evidence a prima facie case of discrimination. Only
upon this prima facie showing does the burden of production shift to the
employer to articulate some legitimate, nondiscriminatory reason for the
employment action at issue.      If the employer carries this burden of
production, the burden shifts back to the employee to demonstrate that the
proffered reason is mere pretext for discrimination. Thomas v. Runyon, 108
F.3d 957, 959 (8th Cir. 1997).

      In order to overcome her initial burden of establishing a prima facie
case of discrimination or retaliation, appellant was required to show,
among other things, that she suffered an adverse employment action that
affected the terms or conditions of her employment. Harlston, 37 F.3d at
382. The district court believed that appellant satisfied this burden by
producing evidence that she suffered a loss of status and




                                    -3-
prestige with the reassignment of her staff. We conclude, however, that
appellant failed to establish how such consequences effectuated a material
change in the terms or conditions of her employment. While the action
complained of may have had a tangential effect on her employment, it did
not rise to the level of an ultimate employment decision intended to be
actionable under Title VII. In Harlston, 37 F.3d at 382, we stated that
“[c]hanges in duties or working conditions that cause no materially
significant disadvantage . . . are insufficient to establish the adverse
conduct required to make a prima facie case.”       There, we held that a
secretary’s reassignment to a different position without any reduction in
title, salary or benefits, even though the new position involved fewer
secretarial duties and was more stressful, did not constitute an adverse
employment action. We stated that “[t]his describes nothing ‘more
disruptive than a mere inconvenience or an alteration of job
responsibilities.’” Id. (quoting Crady v. Liberty Nat’l Bank & Trust Co.,
993 F.2d 132, 136 (7th Cir. 1993)).     See also Flaherty v. Gas Research
Inst., 31 F.3d 451, 457 (7th Cir. 1994) (holding a semantic change in title
and a “bruised ego” did not constitute adverse employment action where pay,
benefits and level of responsibility remained the same); Spring v.
Sheboygan Area Sch. Dist., 865 F.2d 883, 886 (7th Cir. 1989) (finding
“public humiliation” is not sufficient to establish age discrimination
because “public perceptions were not a term or condition of [the
plaintiff’s] employment”).

      The clear trend of authority is to hold that a “purely lateral
transfer, that is, a transfer that does not involve a demotion in form or
substance, cannot rise to the level of a materially adverse employment
action.” Williams v. Bristol-Meyers Squibb Co., 85 F.3d 270, 274 (7th Cir.
1996) (emphasis in original). A transfer involving only minor changes in
working conditions and no reduction in pay or benefits will not constitute
an adverse employment action, “[o]therwise every trivial personnel action
that an irritable . . . employee did not like would form the basis of a
discrimination suit.” Id.




                                    -4-
      Appellant did not suffer the type of adverse employment action that
is necessary to establish a prima facie case of discrimination under Title
VII. Appellant offers no evidence to show that an exchange of her staff,
while her salary, benefits, responsibilities, title and even office
location remained the same,2 somehow materially altered the terms or
conditions of her employment. Further, the placement of the notice in
appellant's file that discrimination is an unlawful employment practice did
not constitute an adverse employment action. This notice, which fairly
described the law, was given to the other employees at appellant's level
and simply reiterated what was already part of DSS policy and performance
appraisals, and was eventually deleted from the employees' files.
Accordingly, we conclude that appellant has failed to establish a prima
facie case of discrimination and we affirm the district court’s grant of
summary judgment in favor of appellees.3

      BEAM, Circuit Judge, dissenting.

      The ultimate determination of adverse employment action is a question
of fact for the jury. Davis v. City of Sioux City, 115 F.3d 1365, 1369
(8th Cir. 1997). I disagree with the court's conclusion that no reasonable
jury could find that Diane




      2
         We agree with the Seventh Circuit that an employer cannot insulate itself from
liability for discrimination merely by offering a transfer at the same salary and benefits.
See Flaherty v. Gas Research Inst. 31 F.3d 451, 456-57 (7th Cir. 1994). The Seventh
Circuit noted that other circuits have found adverse employment actions “in a [sic]
employer’s moving an employee’s office to an undesirable location, transferring an
employee to an isolated corner of the workplace, and requiring an employee to relocate
her personal files while forbidding her to use the firm’s stationary and support
services.” Id. (quoting Collins v. State of Illinois, 830 F.2d 692, 703 (7th Cir. 1987)).
      3
        We may affirm a judgment on any ground supported by the record, even if not
relied upon by the district court. See Maness v. Star-Kist Foods, Inc., 7 F.3d 704, 709
(8th Cir. 1993), cert. denied, 512 U.S. 1207 (1994).

                                           -5-
Ledergerber has suffered from an adverse employment action, and therefore
dissent.
      In Harlston, we properly shied away from allowing a plaintiff’s
subjective perception about a reassignment to control whether a change is
materially adverse.    37 F.3d at 382.    I do not believe, however, that
Harlston stands for the proposition that an employer can avoid Title VII
liability by characterizing all changes in duties and treatment as
qualitative and, therefore, non-adverse.    In Davis, the defendant argued
that the plaintiff's transfer to a different job at a higher salary was not
adverse.   We observed that "[t]he jury apparently put more weight on
Davis’s evidence that the new position lacked supervisory status, had fewer
opportunities for salary increases, and offered Davis little opportunity
for advancement. The jury was free to credit this evidence . . . . " 115
F.3d at 1369.   Ledergerber, like Davis, has presented sufficient evidence
from which a reasonable jury could find that she has suffered an adverse
employment action.

      The court views the only harm worked by Ledergerber's transfer as a
loss of status and prestige. First, I cannot accept the premise that being
identified as a racist by one's employer "cause[s] no materially
significant disadvantage." Harlston, 37 F.3d at 382. Furthermore, we have
previously held that, under certain circumstances, the loss of public
respect and stature can constitute adverse employment action. In Goodwin
v. Circuit Court of St. Louis County, Mo., 729 F.2d 541, 547 (8th Cir.
1984) the court held that a transfer, with the same pay, from a position
as a hearing officer to that of a staff attorney was adverse because the
new position was less prestigious. The loss of intangible status has been
deemed by other circuits, particularly in institutional employment settings
like the DFS, to be legally sufficient to state a claim of adverse
employment action. See, e.g., Bryson v. Chicago State Univ., 96 F.3d 912
(7th Cir. 1996) (loss of unofficial "in-house title" and membership on
university committees, without change in duties, rank or salary,
constitutes adverse employment action); De la Cruz v. New York City Human
Resources Admin., 82 F.3d 16 (2d Cir. 1996) (transfer from an elite
division to a less prestigious unit, even though two units are




                                    -6-
officially lateral, constitutes adverse employment action); Vojvodich v.
Lopez, 48 F.3d 879 (5th Cir. 1995) (in a section 1983 claim, transfer from
position of Narcotics Lieutenant to Communications/Dispatching Lieutenant
constitutes adverse employment action because new position was "less
prestigious" and "offered less job satisfaction"), cert. denied, 116 S. Ct.
169 (1995).

      Moreover, loss of status is not the only detriment Ledergerber claims
to have suffered. There is evidence in the record that Ledergerber's new
subordinates were comprised of less desirable "problem employees" that the
other supervisors did not want on their staff. Appellant's App. at 136,
139-40. Ledergerber's new subordinates work in the "Claims and Restitution
Unit" rather than dealing with casework and applications, and this
substantive change has her in charge of employees in an area with which she
is not familiar. Appellant's App. at 136. Ledergerber reports that her
transfer has created the perception that she is a racist, which, in turn,
has resulted in more complaints by subordinates and has limited her
opportunities for promotion. Appellant's App. at 137, 140-41. Finally,
and perhaps most tellingly, when the caseworkers initially filed their
charges against Ledergerber, they requested that Ledergerber be "terminated
or transferred." Appellant's App. at 37 (emphasis added). From this, an
independent investigator used by DFS to investigate the original charges
of discrimination characterized the action taken against Ledergerber as
disciplinary.    Appellant's App. at 107.      Even internal departmental
correspondence refers to     the shift in staff away from Ledergerber as
"corrective action for Ms. Ledergerber." Appellant's App. at 61 and 71.

      There is a controverted issue of fact as to whether Ledergerber
suffered an adverse employment action. It is not this court's function to
resolve fact questions. This case should be remanded for trial, and I
therefore respectfully dissent.




                                    -7-
A true copy.

     Attest:

           CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                             -8-
