                                                             [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT            FILED
                            ________________________ U.S. COURT OF APPEALS
                                                             ELEVENTH CIRCUIT
                                  No. 08-15485                 MARCH 29, 2010
                            ________________________             JOHN LEY
                                                                  CLERK
                       D. C. Docket No. 07-00096-CV-CDL-4

BYRON HICKEY,


                                                                   Plaintiff-Appellee,

                                        versus

COLUMBUS CONSOLIDATED GOVERNMENT, et al.,

                                                                         Defendants,

CHIEF R.T. BOREN,
Individually and in his official capacity,
CAPT J. D. HAWK,
Individually and in his official capacity,
SGT. DAVID HORIUCHI,
Individually and in his official capacity,


                                                           Defendants-Appellants.

                            ________________________

                    Appeal from the United States District Court
                        for the Middle District of Georgia
                         _________________________
                                (March 29, 2010)
Before BIRCH, BARKETT, Circuit Judges, and BUCKLEW,* District Judge.


BARKETT:

       Police Chief R.T. Boren, Police Captain, J.D. Hawk, and Police Sergeant

David Horiuchi appeal from an adverse summary judgment in Byron Hickey’s suit

against them asserting employment discrimination and retaliation in violation of

Title VII, § 1981, the Equal Protection Clause, the First Amendment, and Georgia

state law. Hickey claims, inter alia, that, because of his race, Chief Boren

transferred him from Vice to Burglary and Theft. He also claims that he was

retaliated against for supporting another officer’s discrimination complaint against

the Department by the above-noted action as well as by a negative performance

review authored by Horiuchi and supported by Hawk and an extended

administrative assignment ordered by Chief Boren. He asserts that the negative

performance review was itself harmful, even though it was reversed the day

following its initial completion; that the administrative assignment resulted in lost

income due to a departmental rule barring officers from taking outside security-

related jobs while on administrative assignment, and that the transfer to Burglary

and Theft was also its own harm.



       *
         Honorable Susan C. Bucklew, United States District Judge for the Middle District of
 Florida, sitting by designation.

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      The District Court denied qualified immunity to Boren on the § 1981

retaliation claims based on the extended administrative assignment as well as the §

1981 and Equal Protection discrimination and retaliation claims based on Hickey’s

transfer to Burglary and Theft. The District Court denied qualified immunity to

Hawk and Horiuchi on the 1981 retaliation claim based on the negative

performance review. Boren, Hawk, and Horiuchi appeal these determinations.

      Initially, we reject the appellants’ argument that a claim for retaliation under

Section 1981 was not clearly established at the time of the allegedly unlawful

conduct. See Andrews v. Lakeshore Rehabilitation Hospital, 140 F.3d 1405 (11th

Cir. 1998) (recognizing § 1981 post-hiring retaliation claims); Pinkard v.

Pullman-Standard, 678 F.2d 1211, 1229 (5th Cir. Unit B 1982).

      However, we find merit in Boren’s argument that, rather than applying the

law at the time of the incidents at issue, the district applied a later-developed legal

standard for retaliation, first discussed in Burlington Northern & Santa Fe Railway

Co., 548 U.S. 53 (2006), to the alleged facts of the case. The clearly-established

law governing retaliation claims in this circuit at the time of the conduct at issue

provided that “in order to be considered an adverse employment action . . . the

action must either be an ultimate employment decision or else must meet some

threshold level of substantiality.” Stravropoulos v. Firestone, 361 F.3d 610,



                                            3
616-617 (11th Cir. 2004).

      Subsequent to the actions relevant here, the Supreme Court rejected this

standard in Burlington Northern. See Crawford v. Carroll, 529 F.3d 961, 973-74

(11th Cir. 2008) (Burlington Northern retaliation standard more lenient to plaintiffs

alleging retaliation under Title VII than 11th Circuit standard in effect at time of

defendants’ allegedly unlawful conduct). Instead, the Supreme Court held that “a

plaintiff must show that a reasonable employee would have found the challenged

action materially adverse, “which in this context means it well might have

‘dissuaded a reasonable worker from making or supporting a charge of

discrimination.’” Burlington Northern, 548 U.S. at 60. (internal citation omitted).

The Court further explained that:

      We speak of material adversity because we believe it is important to separate
      significant from trivial harms. Title VII, we have said, does not set forth “a
      general civility code for the American workplace.” . . .

      We refer to reactions of a reasonable employee because we believe that the
      provision's standard for judging harm must be objective. An objective
      standard is judicially administrable. It avoids the uncertainties and unfair
      discrepancies that can plague a judicial effort to determine a plaintiff's
      unusual subjective feelings. . . .

      [T]his standard . . . is tied to the challenged retaliatory act, not the
      underlying conduct that forms the basis of the Title VII complaint. By
      focusing on the materiality of the challenged action and the perspective of a
      reasonable person in the plaintiff's position, we believe this standard will
      screen out trivial conduct while effectively capturing those acts that are
      likely to dissuade employees from complaining or assisting in complaints

                                           4
      about discrimination.


Id. at 68-69 (internal citations omitted).

      Although this is the applicable standard now, subsequent law cannot be

applied in a qualified immunity context unless pre-existing law, at the time of the

allegedly unlawful conduct, is clearly established such that it would give notice to

a reasonable official of the wrongfulness of the conduct. See Hope v. Pelzer, 536

U.S. 730, 739-41 (2002).

      Accordingly, Boren’s actions relative to the extended administrative

assignment must be evaluated under the clearly established law existing at the time

of the alleged unlawful conduct, and we reverse and remand the denial to Boren of

qualified immunity for reconsideration under that standard.

      As to the claim of discrimination against Boren for Hickey’s transfer to

Burglary and Theft and the claims against Hawk and Horiuchi, we reverse the

denial of qualified immunity. Hickey argues that Horiuchi did not follow required

procedures when he decided to down-grade one of the thirteen elements of

Hickey’s 2006 appraisal without giving Hickey advance notice of his intent to do

so. However, Hickey’s January 19, 2006 performance evaluation by Horiuchi did

not result in any tangible harm such as the loss of his job, a delay in his annual

raise, a decrease in his earnings or degrading of his position. Moreover, the January

                                             5
19th evaluation was rejected and never became part of Hickey’s personnel record.

When Hickey’s grievance was resolved in Hickey’s favor, a new - and higher -

evaluation was substituted. Because the evaluation process was suspended as soon

as Hickey contested his appraisal, and before Hickey suffered any tangible harm,

Horiuchi’s non-compliance with Departmental policy – and Hawk’s approval of

that non-compliance – did not rise to the level of substantiality required by the

clearly-established law that existed in this circuit at the time. See Pennington v.

City of Huntsville, 261 F.3d 1262, 1267 (11th Cir. 2001) (decision to reprimand or

transfer an employee, if rescinded before the employee suffers a tangible harm, is

not an adverse employment action).

      Likewise, the transfer to the Burglary unit did not result in any tangible

harm. As such, it too cannot make out a discrimination claim. See Davis v. Lake

Park, 245 F.3d 1232, 1243-45 (11th Cir. 2001).

      REVERSED AND REMANDED.




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