     Case: 14-50483         Document: 00513011661         Page: 1     Date Filed: 04/20/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                        No. 14-50483                         United States Court of Appeals
                                                                                      Fifth Circuit

                                                                                     FILED
RANDY JENKINS,                                                                  April 20, 2015
                                                                               Lyle W. Cayce
                Plaintiff - Appellant                                               Clerk

v.

CITY OF SAN ANTONIO FIRE DEPARTMENT,

                Defendant - Appellee




                     Appeal from the United States District Court
                          for the Western District of Texas


Before JONES and HAYNES, Circuit Judges, and CRONE, District Judge.*
HAYNES, Circuit Judge:
      Appellant Randy Jenkins filed suit against the City of San Antonio Fire
Department (“Fire Department”), alleging discrimination on the basis of race
and age, and retaliation, in violation of Title VII. Because Jenkins’s complaint
was, in part, untimely, and failed to establish a prima facie case of
discrimination and retaliation, we AFFIRM the district court’s grant of
summary judgment in favor of the Fire Department.




      *   District Judge of the Eastern District of Texas, sitting by designation.
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                                I. Background
      Randy Jenkins, a 51-year-old African-American male, has served in the
San Antonio Fire Department since 1986. The Fire Department is headed by
the Fire Chief, Charles Hood, who oversees a deputy chief, assistant chiefs,
district chiefs, captains, lieutenants, engineers, and firefighters.   In 2008,
Jenkins was appointed as one of two district chiefs of Fire Prevention,
reporting directly to Assistant Chief Earl Crayton. In this capacity, Jenkins
was responsible for oversight of Community Safety & Education (“CS&E”).
When the other district chief in the Fire Prevention Division left, Jenkins
temporarily assumed his responsibilities, which included oversight of Arson,
Special Events, Inspections, and Administration. Eventually, a new district
chief was assigned to the Fire Prevention Division and given responsibility for
CS&E while Jenkins retained oversight of Special Events, Inspections, and
Administration. Assistant Chief Crayton oversaw the Arson office.
      After the recently appointed district chief left in 2009, Captain
Christopher Monestier was hired as his replacement and assigned oversight of
CS&E and Special Events.      In 2011, Assistant Chief Crayton “realigned”
Jenkins and Monestier’s duties.       Jenkins would oversee CS&E, while
Monestier was delegated responsibility for Inspections and Special Events.
Jenkins did not suffer a reduction in rank or benefits but perceived the
realignment as discrimination based on his race, color, or age as well as
retaliation for giving a statement supporting an EEOC charge against
Crayton. Jenkins filed an EEOC charge to this effect on August 19, 2011, and
the EEOC issued a right-to-sue letter on May 16, 2012.
      Monestier vacated his position within the division in 2012, and Assistant
Chief Crayton solicited applications for the open position from all district
chiefs. A review panel was formed to interview and recommend a candidate
for approval. The panel was composed of a director in the City’s Department
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of Development Services, the Chief of Operations for the Fire Department, and
a deputy chief in the Police Department. Two candidates applied for the
position, Jenkins and District Chief Matias Jimenez, a Hispanic male. The
panel unanimously chose Jimenez, and his appointment was approved by Fire
Chief Hood. Jimenez was given responsibility for Inspections, Administration,
and Special Events, while Jenkins retained oversight of CS&E. On August 17,
2012, Jenkins filed an additional charge with the EEOC, complaining that he
was not selected for the position for discriminatory and retaliatory reasons.
      Jenkins filed suit in district court on August 20, 2012, alleging that the
2011 reassignment of duties was a product of race and age discrimination. He
also included a retaliation claim, alleging that Assistant Chief Crayton was
punishing Jenkins for making statements supporting a charge against
Crayton.
      On May 16, 2013, Assistant Chief Crayton again realigned office
responsibilities, charging Jenkins with oversight of boarding homes, schools,
hospitals, nursing homes, and congregate living, all of which had previously
been under the purview of Inspections. He was also tasked with overseeing
special events, HazMat, after-hours details, and supervision of engineers
assigned to the Fire Marshal’s Office. All of this was in addition to his CS&E
responsibilities.
      On June 26, 2013, Jenkins amended his complaint in district court to
include the claims raised in his second EEOC charge; namely, that the Fire
Department discriminated against him on the basis of his race and age by
selecting Jimenez to be District Chief of Inspections. He also alleged that the
Fire Department refused to appoint him to the position in retaliation for filing
the first EEOC charge.
      The district court granted summary judgment in favor of the Fire
Department.     It held that Jenkins’s discrimination and retaliation claims
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stemming from the 2011 reassignment of duties were not timely filed. Even
assuming his suit was timely, the district court found that Jenkins’s
discrimination and retaliation claims stemming from both the 2011
reassignment and Jenkins’s non-selection as District Chief of Inspections in
2012 failed because he was unable to establish a prima facie case. Jenkins
timely appealed.
                                II. Discussion
      The EEOC issued a right-to-sue letter on May 16, 2012, allowing Jenkins
to sue for the discrimination and retaliation claims raised in his 2011 EEOC
charge. Jenkins had 90 days from the date of receipt to file suit, but he is
unsure about when he received the notice. See 42 U.S.C. § 2000e-5(f)(1).
“When the date on which a right-to-sue letter was actually received is either
unknown or disputed, courts have presumed various receipt dates ranging
from three to seven days after the letter was mailed.” Taylor v. Books A
Million, Inc., 296 F.3d 376, 379 (5th Cir. 2002). The district court, applying a
three-day presumption, found that Jenkins received notice on May 19, 2012,
which required Jenkins to file his complaint by August 17, 2012. Because
Jenkins filed his complaint on August 20, 2012, the district court held it
untimely.
      Jenkins urges us to apply a more lenient presumption of five days, which
will render his suit timely. See FED. R. CIV. P. 6(a)(1)(c) (Although August 20,
2012, is ninety-six days after issuance of the right to sue letter, August 19,
2012, was a Sunday. For the purposes of computing time to file suit, “if the
last day is a Saturday, Sunday, or legal holiday, the period continues to run
until the end of the next day.”). We have applied different presumptions in
different contexts and have noted that “[t]he exact number of days is thus an
open question in this Circuit.” Morgan v. Potter, 489 F.3d 195, 196 (5th Cir.
2007); Martin v. Alamo Cmty. Coll. Dist., 353 F.3d 409, 411 (5th Cir. 2003)
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(applying a three-day presumption). Moreover, the majority of other circuit
courts apply a three-day presumption of receipt, primarily citing to Federal
Rule of Civil Procedure 6(d), 1 which assumes receipt three days after service is
mailed. See, e.g., Payan v. Aramark Mgmt. Servs. Ltd. P’ship, 495 F.3d 1119,
1125 (9th Cir. 2007); Kerr v. McDonald’s Corp., 427 F.3d 947, 953 (11th Cir.
2005); Seitzinger v. Reading Hosp. and Med. Ctr., 165 F.3d 236, 239 (3d Cir.
1999); Nguyen v. Inova Alexandria Hosp., 187 F.3d 630, 1999 WL 556446, at
*3 (4th Cir. 1999) (unpublished); Smith–Haynie v. District of Columbia, 155
F.3d 575, 578 n.3 (D.C. Cir. 1998); Sherlock v. Montefiore Med. Ctr., 84 F.3d
522, 525–26 (2d Cir. 1996); see also Baldwin Cnty. Welcome Ctr. v. Brown, 466
U.S. 147, 148 n.1 (1984) (presuming the plaintiff received a right-to-sue letter
three days after delivery based on Federal Rule of Civil Procedure 6(e)). But
see Lozano v. Ashcroft, 258 F.3d 1160, 1164–65 (10th Cir. 2001) (noting that
the court has approved either a three-day or a five-day presumption); Graham–
Humphreys v. Memphis Brooks Museum of Art, Inc., 209 F.3d 552, 557 n.9 (6th
Cir. 2000) (“The Sixth Circuit allots two days for postal delivery of a RTS notice
beyond the three day period allowed by Federal Rule of Civil Procedure 6(e).”).
      We have repeatedly noted that a three-day presumption is permissible,
and have applied such a presumption. See Martin, 353 F.3d at 411; see also
Morgan, 489 F.3d at 196 (“[W]e have previously expressed the view that a
three-day presumption is reasonable . . . .”). Appellant’s arguments to the
contrary are unavailing. Jenkins cites to 29 C.F.R. § 1614.604(b) for the
proposition that a document is timely if, in the absence of a postmark, it is
received within five days of the expiration of the applicable filing period.
Unfortunately for Jenkins, this provision applies only to federal employees,



      1   Federal Rule of Civil Procedure 6 has since been amended so that the former Rule
6(e) is now found in Rule 6(d).
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which Jenkins is not. See 29 C.F.R. § 1614.103. Jenkins’s policy arguments
are likewise unpersuasive. 2 We conclude that, where the date of receipt is not
known, 3 courts should apply a presumption that the plaintiff received the
notice in three days. Accordingly, we affirm the district court’s holding that
Jenkins’s claims arising from his 2011 EEOC charge were not timely filed.
       Because Jenkins’s complaint arising from his 2011 allegations of
discrimination and retaliation was not timely filed, we turn to the allegations
enumerated in his 2012 EEOC charge.                   Jenkins contends that he was
discriminated against on the basis of his race and age when he was not selected
for the position of District Chief of Inspections, and that his non-selection for
the position was also in retaliation for filing the 2011 EEOC charge. The
district court found that Jenkins failed to state a prima facie case of
discrimination because his non-selection for the Inspections position was not
an adverse employment action.
       We review the district court’s grant of summary judgment de novo.
Haire v. Bd. of Supervisors of La. State Univ. Agric. & Mech. Coll., 719 F.3d
356, 362 (5th Cir. 2013). Summary judgment is appropriate if “the movant
shows that there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). “We construe
all facts and inferences in the light most favorable to the nonmoving party,”
Dillon v. Rogers, 596 F.3d 260, 266 (5th Cir. 2010), but “[s]ummary judgment
may not be thwarted by conclusional allegations, unsupported assertions, or




       2 Jenkins seemingly argues that application of the three-day presumption does not
afford the EEOC’s regulations appropriate deference. Given that the EEOC regulations cited
by Jenkins are inapplicable here, this argument necessarily fails.

       3  Such a presumption is unnecessary and inappropriate, of course, if there is other
evidence showing a date of receipt earlier or later, such as postal evidence or testimony from
the plaintiff or other persons with personal knowledge.
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presentation of only a scintilla of evidence,” McFaul v. Valenzuela, 684 F.3d
564, 571 (5th Cir. 2012).
      When, as here, there is no direct evidence of discrimination, we apply the
modified McDonnell Douglas 4 burden-shifting framework. See Burrell v. Dr.
Pepper/Seven Up Bottling Grp., Inc., 482 F.3d 408, 411 (5th Cir. 2007). Under
the modified McDonnell Douglas approach, Jenkins must first establish a
prima facie case of racial discrimination by showing that “(1) he belongs to a
protected group; (2) he was qualified for the position sought; (3) he suffered an
adverse employment action; and (4) he was replaced by someone outside the
protected class.” Price v. Fed. Express Corp., 283 F.3d 715, 720 (5th Cir. 2002).
      We agree with the district court’s assessment that Jenkins did not suffer
an adverse employment action. While the denial of a purely lateral transfer is
not an adverse employment action redressible under Title VII, see Burger v.
Cent. Apartment Mgmt., Inc., 168 F.3d 875, 879 (5th Cir. 1999), “the denial of
a transfer may be the objective equivalent of the denial of a promotion, and
thus qualify as an adverse employment action, even if the new position would
not have entailed an increase in pay or other tangible benefits[,] if the position
sought was objectively better.” Alvarado v. Tex. Rangers, 492 F.3d 605, 614
(5th Cir. 2007) (emphasis in original). As part of this inquiry, we evaluate
whether the position sought “entails an increase in compensation or other
tangible benefits; provides greater responsibility or better job duties; provides
greater opportunities for career enhancement; requires greater skill,
education, or experience; is obtained through complex selection process; or is
otherwise objectively more prestigious.” Id. (citations omitted).




      4   McDonnell Douglas Corp. v. Green, 411 U.S. 792, 793 (1973).
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                                      No. 14-50483
       None of these factors support Jenkins. He would not benefit financially
as District Chief of Inspections, 5 nor does he offer evidence, beyond his
subjective beliefs, that the Inspections position was more prestigious or
required greater skill, education, or experience than his position as District
Chief in charge of CS&E. See Pegram v. Honeywell, Inc., 361 F.3d 272, 283
(5th Cir. 2004) (a plaintiff’s subjective belief, without more, is insufficient to
establish that a transfer resulted in a loss of prestige). In sum, Jenkins’s has
failed to establish that his non-selection as District Chief of Inspections was
an adverse employment action.
       For the same reason, Jenkins is unable to establish a prima facie case of
age discrimination, which requires Jenkins to show, among other things, that
he suffered an adverse employment action. Smith v. City of Jackson, 351 F.3d
183, 196 (5th Cir. 2003).          Not only did Jenkins not suffer an adverse
employment action for the reasons above, but also the employee hired in lieu
of Jenkins was less than two years younger than he. An age gap of less than
two years is insufficient to support a prima facie case of age discrimination.
See, e.g., O’Connor v. Consol. Caterers Corp., 517 U.S. 308, 313 (1996) (“In the
age-discrimination context, such an inference cannot be drawn from the
replacement of one worker with another worker insignificantly younger.”); see
also Earle v. Aramark Corp., 247 F. App’x 519, 523 (5th Cir. 2007)
(unpublished) (finding that a four year age gap was an insignificant age
difference that is not sufficient to support a prima facie case of age
discrimination); Rachid v. Jack In The Box, Inc., 376 F.3d 305, 312 (5th Cir.
2004) (stating that an age difference of five years is a “close question”).




       5 While Jenkins claims that he has fewer opportunities for overtime pay as District
Chief of CS&E compared to District Chief of Inspections, he failed to rebut evidence that the
opposite is in fact true.
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                                      No. 14-50483
       Finally, Jenkins’s retaliation claim based on the 2012 selection process
also fails. He maintains that the Fire Department refused to appoint him as
District Chief of Inspections in response to his filing of the 2011 EEOC charge.
Where, as here, the Plaintiff does not provide direct evidence of retaliation, 6
Jenkins must show that (1) he engaged in conduct protected by Title VII; (2)
he suffered a materially adverse action; and (3) a causal connection exists
between the protected activity and the adverse action. See Aryain v. Wal-Mart
Stores Tex. LP, 534 F.3d 473, 484 (5th Cir. 2008). It is undisputed that the
filing of an EEOC charge is protected conduct.                See Harvill v. Westward
Commc’ns, LLC, 433 F.3d 428, 439 (5th Cir. 2005).
       A materially adverse action, in the retaliation context, is one which
might “dissuade[] a reasonable worker from making or supporting a charge of
discrimination.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68
(2006) (citation and internal quotation marks omitted). Jenkins’s retaliation
claim cannot satisfy this standard for largely the same reasons his
discrimination claims failed.        The roles of District Chief of CS&E, which
Jenkins retained, and District Chief of Inspections were considered equivalent
within the Fire Prevention Division, and there is no evidence that they differed
in terms of compensation, benefits, working conditions, or other factors. See
Aryain, 534 F.3d at 485 (indicating that the transfer from an arduous and
prestigious position to another comparatively less important position could
weigh in favor of material adversity). Despite his assertion that the District



       6 As part of Jenkins’s untimely 2011 discrimination claim, he proffered alleged direct
evidence of retaliation in the form of statements made by Assistant Chief Crayton in 2009 or
2010. Those statements by Assistant Chief Crayton do not benefit Jenkins here, as they were
made several years prior to the allegedly adverse employment action and thus lack sufficient
temporal proximity to serve as direct evidence. See, e.g., Ray v. United Parcel Serv., 587 F.
App’x 182, 188 (5th Cir. 2014) (unpublished) (finding that time span of four to thirteen
months between comments and alleged discriminatory conduct were too remote in time to
serve as direct evidence).
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                                  No. 14-50483
Chief of CS&E is perceived as less prestigious and provides fewer avenues for
advancement, Jenkins acknowledges that the role was vital to the Fire
Department and that as District Chief of CS&E he served as the face of Fire
Prevention within the community.       Furthermore, whether an employment
action is materially adverse is an objective query, and here Jenkins relies
solely on his subjective impressions for support. See White, 548 U.S. at 68–69.
Thus, while Jenkins clearly coveted the role of District Chief of Inspections, his
subjective preference is not enough to make his non-selection materially
adverse. Aryain, 534 F.3d at 485 (citing White, 548 U.S. at 68).
      For the foregoing reasons we AFFIRM the judgment of the district court.




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