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                                                               [DO NOT PUBLISH]




                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 18-12778
                           ________________________

                       D.C. Docket No. 2:16-cv-00196-MHH

MONTAGUE MINNIFIELD,

                                                   Plaintiff - Appellee,

versus

CITY OF BIRMINGHAM DEPARTMENT OF POLICE, et al.,

                                                   Defendants,

HEATH BOACKLE,
in his official and individual Capacity,

                                                   Defendant - Appellant.

                           ________________________

                    Appeal from the United States District Court
                       for the Northern District of Alabama
                           ________________________

                                 (October 30, 2019)
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Before MARCUS, JULIE CARNES and KELLY, * Circuit Judges.

PER CURIAM:

       Defendant-Appellant Sergeant Heath Boackle, a supervisor in the

Birmingham Police Department (“BPD”) K-9 unit, appeals from the denial of

qualified immunity. Plaintiff-Appellee, Officer Montague Minnifield, an African-

American male, claims that he was not transferred to a K-9 patrol position because

of his race and in retaliation for filing complaints of discrimination. He faults

Sergeant Boackle for not recommending him and recommending white officers for

the position instead. We have jurisdiction to consider the denial of qualified

immunity to the extent that resolution turns on issues of law, rather than

evidentiary sufficiency. Johnson v. Jones, 515 U.S. 304, 317 (1995). Because the

law did not clearly establish that an adverse employment action included a failure

to recommend an applicant for a position that paid the same and offered no

materially improved work conditions (other than prestige), we reverse.

                                               I


       Officer Minnifield joined the BPD in 1997 as a police officer. In 2009, he

applied to transfer to the Tactical Unit, which comprises specialized units

including motorscouts, patrol K-9, and airport K-9 teams. Officer Minnifield’s



*
  Honorable Paul J. Kelly, Jr., United States Circuit Judge for the Tenth Circuit, sitting by
designation.
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application was initially denied, but he was later transferred after he filed a

grievance with the Jefferson County Personnel Board. Officer Minnifield

indicated his preference for a K-9 or motorscout position, but was assigned to the

Freeway Unit. After further dispute and another complaint, Officer Minnifield

succeeded in becoming a motorscout, which entitled him to a 5% pay increase.

       In 2012 and 2013, the BPD posted K-9 vacancies and Officer Minnifield

applied. Sergeant Boackle sent BPD Chief Roper a memo recommending five

officers, not including Officer Minnifield, for the open patrol K-9 position. All of

the officers recommended were white, as were the ones selected.

       Officer Minnifield filed an EEOC charge based upon Sergeant Boackle’s

failure to recommend him to Chief Roper for the 2013 patrol K-9 vacancy. In

2014, Officer Minnifield sustained injuries in a motorcycle accident that limited

him to performing administrative duties until he retired in 2015. Later that year,

the EEOC sent Officer Minnifield a right-to-sue letter on his 2013 claims. 1

       Officer Minnifield sued the City of Birmingham under a variety of statutes

including 42 U.S.C. § 1981, Title VII, and 42 U.S.C. § 1983, including Sergeant

Boackle in a § 1983 claim. The Defendants moved for summary judgment, which

the district court granted in part and denied in part. Minnifield v. City of


1
  42 U.S.C. § 1981 does not require claimants to go through the EEOC administrative
process as a prerequisite of suit. Officer Minnifield brought his § 1981 claim together with
Title VII claims that did require him to take this administrative step.
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Birmingham, 325 F.R.D. 450, 471 (N.D. Ala. 2018). In pertinent part, the district

court denied summary judgment on “the § 1983 claims for disparate treatment and

retaliation in violation of § 1981 against [Sergeant] Boackle in his individual

capacity, to the extent the claims are based on the failure to promote Officer

Minnifield to a 2013 Patrol K–9 position.” Id. Defendants then moved to alter or

amend the judgment, Fed. R. Civ. P. 59(e), contending that the district court

overlooked Sergeant Boackle’s qualified immunity defense.

      In response, the district court denied qualified immunity. The district court

held that Officer Minnifield had a clearly established right to be free of retaliation

and racial discrimination at work, that Sergeant Boackle’s actions violated that

right, and that a reasonable officer in Sergeant Boackle’s position would have

known it. III Aplt. App. 170–171. On appeal, Sergeant Boackle argues that he is

entitled to qualified immunity because he acted within his discretionary authority

and no clearly established law provided that (1) he could be held liable when he

was not Officer Minnifield’s employer or supervisor, (2) his failure to recommend

constituted an adverse employment action, or (3) that his actions could be

construed as the but-for cause of retaliation.

                                          II

      Because a qualified immunity inquiry presents a “pure question of law,” we

review de novo a district court’s denial of summary judgment based on qualified



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immunity and view the evidence in a light most favorable to the non-movant.

Elder v. Holloway, 510 U.S. 510, 516 (1994); Gray ex rel. Alexander v. Bostic,

458 F.3d 1295, 1303 (11th Cir. 2006). Ordinarily, we take the facts the district

court assumed as given. See Johnson, 515 U.S. at 319.

      Qualified immunity protects government officials performing discretionary

functions so long as an official’s conduct “does not violate clearly established

statutory or constitutional rights of which a reasonable person would have known.”

Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457

U.S. 800, 818 (1982)). The purpose of qualified immunity is to protect public

officials “from undue interference with their duties and from potentially disabling

threats of liability.” Holloway, 510 U.S. at 514 (quoting Harlow, 457 U.S. at 806).

Qualified immunity protects “all but the plainly incompetent or those who

knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986).

      A defendant claiming qualified immunity must show that he acted “within

the scope of his discretionary authority when the allegedly wrongful acts

occurred.” Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002) (quoting Courson

v. McMillian, 939 F.2d 1479, 1487 (11th Cir. 1991)). If that showing is made,

then the question becomes whether plaintiff’s allegations, taken as true, establish

that the conduct (1) violated a constitutional or statutory right that (2) was clearly

established by law. Grider v. City of Auburn, 618 F.3d 1240, 1254 (11th Cir.



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2010) (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)). Courts may approach

these elements in either order, though it may be beneficial to analyze them in

sequence. Pearson, 555 U.S. at 236–37. At the same time, it is not necessary to

decide both where it is plain that the law is not clearly established. Id.

      Whether a defendant was acting within his or her discretionary authority

depends on whether the official was “(a) performing a legitimate job-related

function. . . (b) through means that were within his power to utilize” at the time the

conduct occurred. Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1265

(11th Cir. 2004). The question is not whether it was within the defendant’s

authority to commit an allegedly unconstitutional or unlawful act. See Harbert

Int’l Inc. v. James, 157 F.3d 1271, 1282 (11th Cir. 1998). Instead, we ask whether

the conduct served a proper purpose and “would be within, or reasonably related

to, the outer perimeter of an official’s discretionary duties.” Id. (quoting In re

Allen, 106 F.3d 582, 594 (4th Cir. 1997). Once this is established, the burden

shifts to the plaintiff to “show that qualified immunity is not appropriate.” Lee,

284 F.3d at 1194.

      To defeat qualified immunity, a plaintiff must show that the conduct in

question violates clearly established law. Kisela v. Hughes, 584 U.S. __, __, 138

S. Ct. 1148, 1152 (2018). A plaintiff need not identify a case directly on point, but

“existing precedent must have placed the statutory or constitutional question



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beyond debate.” White v. Pauly, 580 U.S. __, __, 137 S. Ct. 548, 552 (2017) (per

curiam) (quoting Mullenix v. Luna, 577 U.S. __, __, 136 S. Ct. 305, 308 (2015)).

Clearly established law must not be identified with a “high level of generality.”

Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011). General legal propositions are not

enough. Doe v. Braddy, 673 F.3d 1313, 1318 (11th Cir. 2012). Rather, the clearly

established law must be “particularized” to the facts of the case. White, 580 U.S.

at __, 137 S. Ct. at 552. In this way, the test focuses “on whether the officer had

fair notice that [his] conduct was unlawful.” Brosseau v. Haugen, 543 U.S. 194,

198 (2004) (per curiam). “[P]re-existing law must dictate, that is, truly compel

(not just suggest or allow or raise a question about), the conclusion for every like-

situated reasonable government agent that what defendant is doing violates federal

law in the circumstances.” Gonzalez v. Lee Cty. Hous. Auth., 161 F.3d 1290,

1295 (11th Cir. 1998) (emphasis in original) (quoting Jenkins by Hall v. Talladega

City Bd. of Educ., 115 F.3d 821, 823 (11th Cir. 1997) (en banc)). This standard

does not require that the “very action in question has previously been held

unlawful,” but “the unlawfulness must be apparent” under then-existing law.

Anderson v. Creighton, 483 U.S. 635, 640 (1987).

      Officer Minnifield’s claim against Sergeant Boackle arises under 42 U.S.C.

§ 1981, which prohibits racial discrimination and retaliation in employment. The

test for disparate treatment under that section, as enforced through 42 U.S.C. §



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1983, is the same as that used in Title VII cases. Lewis v. City of Union City, 934

F.3d 1169, 1185 (11th Cir. 2019). Both disparate treatment and retaliation require

a plaintiff to show an adverse employment action as part of his prima facie case.

Trask v. Sec’y, Dep’t of Veterans Affairs, 822 F.3d 1179, 1191–92 (11th Cir.

2016). “An adverse employment action is an ultimate employment decision, such

as discharge or failure to hire, or other conduct that ‘alters the employee’s

compensation, terms, conditions, or privileges of employment, deprives him or her

of employment opportunities, or adversely affects his or her status as an

employee.’” Gupta v. Fla. Bd. of Regents, 212 F.3d 571, 587 (11th Cir. 2000)

(quoting Robinson v. City of Pittsburgh, 120 F.3d 1286, 1300 (3d Cir. 1997)),

overruled on other grounds by Burlington N. & Santa Fe Ry. Co. v. White, 548

U.S. 53 (2006). For disparate treatment, an adverse employment action must

“impact the ‘terms, conditions, or privileges’ of the plaintiff’s job in a real and

demonstrable way.” Davis v. Town of Lake Park, 245 F.3d 1232, 1239 (11th Cir.

2001), overruled on other grounds by Burlington, 548 U.S. 53. Proof of “direct

economic consequences” is not required, but a plaintiff must show “a serious and

material change in the terms, conditions, or privileges of employment.” Id.

(emphasis in original). Retaliation claims have a relaxed standard requiring only a

showing of a materially adverse action that “might [] dissuade[] a reasonable




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worker from making or supporting a charge of discrimination.” Crawford v.

Carroll, 529 F.3d 961, 974 (11th Cir. 2008) (quoting Burlington, 548 U.S. at 68).

                                         III

      Sergeant Boackle was acting within the scope of his discretionary authority

when he recommended officers for a vacant position within BPD. At the time he

made those recommendations, the law was not clearly established that failure to

recommend an employee for a lateral transfer to a position with the same pay

constitutes an adverse employment action under 42 U.S.C. § 1981.

                                          A

      As an initial matter, the parties appear to disagree about some aspects of the

K-9 positions. These issues prove immaterial, since even assuming their resolution

in Officer Minnifield’s favor does not change the conclusion that Sergeant Boackle

is entitled to qualified immunity. First, the parties dispute whether patrol K-9

officers received a 5% increase in pay. Sergeant Boackle initially admitted that

“K-9 patrol positions resulted in a 5% increase in wages.” Amended Complaint ¶

21, I Aplt. App. 29; Answer of Defendant Heath Boackle ¶ 21, I Aplt. App. 67.

However, in later pleadings and at oral argument, Sergeant Boackle maintained

that the 5% increase is in fact not available to patrol K-9 units. Defendants’ Brief

in Support of their Motion for Summary Judgment ¶ 18, I Aplt. App. 94 (“The 5%

(percent) pay increase is not available to patrol dog handlers.”); Oral Argument at



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4:24 (“Kelly, J.: Did [the patrol K-9 position] pay less [than the motorscout

position]? Counsel for Sergeant Boackle: That is the evidence your honor, yes it

is.”). We will assume that patrol K-9 positions did receive this increase. See

Holloway, 510 U.S. at 516. The parties do not dispute motorscouts also received

this increase. Thus, Officer Minnifield was “topped out” on the officer pay scale

and already receiving a 5% increase as a motorscout. Therefore, his pay would

have remained the same had he obtained a K-9 position. There is no evidence that

Officer Minnifield was denied an increase in pay because he did not receive either

a patrol or airport K-9 position. Our analysis therefore proceeds under the

assumption that Officer Minnifield was denied a recommendation for a position

that received the same pay as his motorscout position.

      The parties also dispute whether patrol K-9 positions were more prestigious

than motorscout positions. The record is not entirely clear on this point. Be that as

it may, we assume that patrol K-9 positions were, in some measure, more

prestigious than motorscout positions. See id. Officer Minnifield’s claim therefore

reduces to Sergeant Boackle declining to recommend him for lateral transfer to a

position offering the same pay but more prestige.

                                         B

      We conclude that Sergeant Boackle was acting within his discretionary

authority when he recommended candidates for the vacant K-9 position. See Lee,



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284 F.3d at 1194. When he made the recommendations, Sergeant Boackle was the

supervising sergeant for the K-9 unit. Recommending candidates for vacant

positions is a typical function of any supervisor. In addition, Sergeant Boackle

testified that he regularly sent memos containing recommendations “up the chain

of command” for consideration by those with ultimate hiring authority. I Aplt.

App. 236. Recommending candidates for assignment therefore fell well within the

“outer perimeter” of Sergeant Boackle’s duties. See Harbert, 157 F.3d at 1282.

      Officer Minnifield argues that Sergeant Boackle did not follow BPD rules

when making his recommendation, placing his actions outside the scope of his

discretionary authority. The parties disagree about whether Sergeant Boackle

applied the correct set of rules in selecting candidates for recommendation. Officer

Minnifield argues that Sergeant Boackle should have followed the Tactical Unit’s

rules, which set more stringent requirements that only Officer Minnifield met. On

the other hand, Sergeant Boackle contends that the lower standards set by the K-9

Unit’s rules were the appropriate measure. Even if the Tactical Unit’s rules should

have applied, we do not believe it places Sergeant Boackle’s actions outside the

scope of his discretionary authority. The fact that Sergeant Boackle may not have

followed internal policy to the letter does not negate his authority entirely. See

Rich v. Dollar, 841 F.2d 1558, 1564 (11th Cir. 1988) (district attorney acted within

his discretionary authority in filing probable cause affidavit though no such cause



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existed). Minor deviations from authority do not place an official’s otherwise

authorized actions beyond the “outer perimeter” of his or her duties.

                                           C

       Once it is shown that an official was acting within his discretionary

authority, qualified immunity applies unless the conduct alleged violates “clearly

established statutory or constitutional rights of which a reasonable person would

have known.” White, 580 U.S. at __, 137 S. Ct. at 551. A plaintiff must therefore

establish that (1) the conduct violated a statutory or constitutional right, and (2) the

right was clearly established in the law. Id. This case is easily resolved on the

second element, so it is unnecessary to resolve the first. See Pearson, 555 U.S. at

236.

       The district court assumed that Officer Minnifield asserted the right to be

free from racial discrimination and retaliation in the workplace. However, this

formulation was too broad. Defining the law at this “high level of generality” for

qualified immunity purposes is discouraged by the Supreme Court. See Ashcroft,

563 U.S. at 742. The proper inquiry is whether it was clearly established law that

failing to recommend an employee for a lateral transfer to a position (offering the

same pay but more prestige) is an adverse employment action for purposes of

disparate treatment and retaliation claims. This formulation “particularizes” the

question to the circumstances and answers whether then-existing law put Sergeant



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Boackle on “fair notice” that his actions violated Officer Minnifield’s rights.

White, 580 U.S. at __, 137 S. Ct. at 552; Brosseau, 543 U.S. at 198.

       The law did not clearly establish that Sergeant Boackle’s conduct constituted

an adverse employment action, under either the disparate treatment or retaliation

standard. Existing law does not place the question of whether a supervisor’s refusal

to recommend someone for a lateral transfer, like the one at issue here, is an

adverse employment action “beyond debate.” See White, 580 U.S. at __, 137 S.

Ct. at 1152. Nor did the law “truly compel” the conclusion that it is. See

Gonzalez, 161 F.3d at 1295. Officer Minnifield clearly wanted a K-9 position,

pursued one tenaciously, and was unhappy that he was not successful. However,

even after assuming disputed facts in his favor, we are left with only prestige as a

material difference between the position he had and the position he sought. 2

Officer Minnifield has pointed us to no authority that clearly establishes that denial

of a transfer to a job that is materially similar in all respects but prestige is an

adverse employment action. Indeed, the cases relied upon by Officer Minnifield

illustrate the point. See Hinson v. Clinch Cty., Georgia Bd. of Educ., 231 F.3d



2
  At oral argument, Officer Minnifield asserted that the adverse employment action is also
grounded on the fact that the job duties of a patrol K-9 officer are “completely different”
than those of a motorscout. But even the cases Officer Minnifield cites demonstrate that
identifying a mere difference in job duties — even a complete one — is not enough to
establish an adverse employment action. Some diminution of duties or responsibilities is
shown in each of these authorities. If a mere difference in duties were enough, then even a
promotion could be considered an adverse employment action.


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821, 830 (11th Cir. 2000) (reasonable factfinder could conclude that transferred

employee “suffered a loss of prestige and responsibility”) (emphasis added);

Collins v. Illinois, 830 F.2d 692, 704 (7th Cir. 1987) (adverse action where

employee was transferred to new department in a position with fewer

responsibilities, deprived of a telephone, delisted from professional publications,

and assigned to a desk in a receptionist’s area instead of a private office); de la

Cruz v. N.Y.C. Human Res. Admin. Dep’t of Soc. Servs., 82 F.3d 16, 21 (2d Cir.

1996) (adverse action where employee was transferred “to a less prestigious unit

with little opportunity for professional growth”) (emphasis added); Torre v. Casio,

Inc., 42 F.3d 825, 831 n.7 (3d Cir. 1994) (adverse action could be established if

employee transferred to “dead-end job”). The law hardly points so clearly in favor

of Officer Minnifield’s position that Sergeant Boackle had “fair notice” that he was

violating the law by declining to recommend him for transfer. Brosseau, 543 U.S.

at 198.

      The district court concluded that Officer Minnifield had shown an adverse

employment action by a “failure to promote” and the denial “of employment

opportunities.” Minnifield, 325 F.R.D. at 464. Officer Minnifield argues that

Sergeant Boackle’s refusal to recommend him for a patrol K-9 position was an




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adverse employment action because it prevented him from gaining the experience

that was a prerequisite to apply for an airport K-9 position. We disagree.

      The connection here is too attenuated and speculative to support the

argument. Even if that were not the case, the argument would still fail because the

patrol and airport K-9 positions were similar in all material respects. The fact that

one was a prerequisite to apply for the other does not remedy the lack of materially

improved conditions or duties. This case does not involve a failure to promote —

that is the heart of the issue before us. The patrol K-9 position was a lateral

transfer. Officer Minnifield cannot argue that he suffered an adverse employment

action because Sergeant Boackle’s refusal to recommend him for a lateral transfer

foreclosed his opportunity to apply for yet another lateral transfer.

      Officer Minnifield’s foreclosed opportunity argument rests on the

assumption that, even if the patrol K-9 position did not get a 5% increase in pay,

the airport K-9 position did. But we have already assumed that the patrol K-9

position received this same increase in pay, and concluded that Sergeant Boackle is

entitled to qualified immunity for failure to recommend under those facts. We are

left, again, with prestige and different — but not materially diminished — job

duties as grounds for finding an adverse employment action. See supra, n.2. The




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law did not clearly establish that these facts constitute an adverse employment

action.

                                          IV

      Sergeant Boackle was acting within his discretionary authority by

recommending, and declining to recommend, candidates for the patrol K-9

position. Officer Minnifield has failed to carry his burden of showing that

Sergeant Boackle violated a clearly established right by declining to recommend

him for transfer. Sergeant Boackle is entitled to qualified immunity.

      We REVERSE the denial of qualified immunity and REMAND this case to

the district court for further proceedings consistent with this opinion.




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