                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   May 4, 2004

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 03-40774
                         Summary Calendar



STEPHEN MYLETT,

                                    Plaintiff-Appellant,

versus


CITY OF CORPUS CHRISTI; PETE ALVAREZ, Chief of Police,
Individually and in His Official Capacity

                                    Defendants-Appellees.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                      USDC No. C-02-CV-239
                      --------------------

Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Stephen Mylett (“Mylett”), a lieutenant with the Corpus

Christi Police Department, appeals the district court’s grant of

summary judgment to Defendants City of Corpus Christi and Pete

Alvarez (“Alvarez”), Chief of Police, on Mylett’s claims of

discrimination and retaliation under Title VII of the Civil

Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., and 42




     *
       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this opinion should not be published and is not precedent except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.
                               No. 03-40774
                                    -2-

U.S.C. § 1983.2      We review an order granting summary judgment de

novo.      Pratt v. City of Houston, 247 F.3d 601, 605-06 (5th Cir.

2001).       Summary judgment is appropriate when “there is no genuine

issue as to any material fact and . . . the moving party is

entitled to judgment as a matter of law.”      FED. R. CIV. P. 56(c).

For the reasons that follow, we affirm the district court’s

judgment.

       To survive a motion for summary judgment on a Title VII

claim, a plaintiff must present a prima facie case of

discrimination or retaliation.       See McDonnell Douglas Corp. v.

Green, 411 U.S. 792, 802 (1973); Banks v. East Baton Rouge Parish

Sch. Bd., 320 F.3d 570, 575 (5th Cir. 2003).      A prima facie case

of discrimination requires a plaintiff to show (1) he is a member

of a protected group, (2) he was qualified for the position at

issue, (3) his employer took an adverse employment action against

him, and (4) he was replaced by someone not a member of his

protected group or he was treated less favorably than others

similarly-situated to him.       See McDonnell Douglas, 411 U.S. at

802.       To establish a prima facie case of retaliation, a plaintiff

must show (1) he participated in activity protected by Title VII,

(2) his employer took an adverse employment action against him,



       2
       Mylett also sued under 42 U.S.C. § 1981 and the Texas
Commission on Human Rights Act, but he does not appeal the
district court’s grant of summary judgment on those claims. See
Hadnot v. Bay, Ltd., 344 F.3d 474, 476 n.4 (5th Cir. 2003)
(holding that claims not briefed on appeal are deemed waived).
                               No. 03-40774
                                    -3-

and (3) a causal connection exists between the protected activity

and the adverse employment action.       Raggs v. Miss. Power & Light

Co., 278 F.3d 463, 471 (5th Cir. 2002).         A prima facie case

raises an inference of discrimination or retaliation, and the

burden shifts to the defendant to articulate a legitimate,

nondiscriminatory reason for its actions.         See Pratt, 247 F.2d at

606.       If the defendant presents such a reason, the plaintiff must

offer evidence that the proffered reason is a pretext for

discrimination or retaliation.       See id.

       Where, as here, § 1983 is used as a parallel remedy for

Title VII violations, the summary judgment analysis under the two

statutes is the same.       See Patel v. Midland Mem. Hosp. & Mem.

Ctr., 298 F.3d 333, 342 (5th Cir. 2002).

       Mylett alleges that he was discriminated against based on

his race (Caucasian) and that he was retaliated against for

giving negative testimony about Alvarez in another officer’s

civil rights trial.       The district court found that Mylett did not

suffer an adverse employment action and that he failed to provide

evidence that any actions taken against him were motivated by

discriminatory or retaliatory intent.         We find that Mylett did

not face any adverse employment actions, so he failed to make a

prima facie case under either statute.3

       3
         We therefore need not address whether Mylett offered any
evidence of discrimination or retaliation. We also do not
address Alvarez’s argument that he is entitled to qualified
immunity, as the district court did not address it, Alvarez did
not designate it as an issue on cross-appeal, and it is not
                            No. 03-40774
                                 -4-

     The broadest definition of an adverse employment action

includes hires, refusals to hire, discharges, promotions,

refusals to promote, demotions, compensation decisions, and

formal reprimands.4   See Sharp, 164 F.3d at 933; Mattern v.

Eastman Kodak Co., 104 F.3d 702, 707 (5th Cir. 1997).     Mylett

argues that he faced the following eight adverse employment

actions: (1) refusal to promote, (2) written and verbal

reprimands, (3) demotion, (4) denial of prestigious positions,

(5) denial of positions with financial benefits, (6) oppressive

changes of work hours for no legitimate reason, (7) denial of day

shifts granted to all other lieutenants on light duty, and (8)

humiliation.   He also argues that even if none of these items

qualify individually, together they constitute an adverse

employment action.    We find that the first five actions are mis-

characterized and are not supported by the record.   The last

three are not adverse employment actions.   We further find that

all eight together do not constitute an adverse employment

action.




necessary to our holding.
     4
       The definition of an adverse employment action may be
broader under § 1983 than it is under Title VII. See Sharp v.
City of Houston, 164 F.3d 923, 933 n.21 (5th Cir. 1999). Mylett
brought claims under both statutes. As we find that Mylett faced
no adverse employment action under even the broadest definition
of the term, we need not differentiate between the definitions
here.
                           No. 03-40774
                                -5-

     Mylett’s promotion was delayed, not denied.5    A delay in

promotion is not an adverse employment action where any increase

in pay, benefits, and seniority are awarded retroactively.      See

Benningfield v. City of Houston, 157 F.3d at 378 (5th Cir. 1998).

The district court found that Mylett received retroactive pay,

benefits, and seniority,6 so the delay was not an adverse

employment action.

     Formal reprimands may constitute adverse employment

actions,7 but, absent evidence that they are “anything more than

mere criticisms,” verbal reprimands do not.   Id. at 377 (finding

that accusations of stealing criminal history records and

attempting to sabotage the fingerprint identification system were

“mere accusations” and not adverse employment actions under §

1983).   We find that Mylett’s reprimands, including an email

Alvarez sent to the division that was critical of Mylett’s

performance, constituted criticism, not formal reprimands, so

Mylett has not shown an adverse employment action.


     5
       To the extent Mylett’s claimed “refusal to promote”
relates to the denial of an official promotion ceremony with his
family in attendance, it is clearly not an adverse employment
action.
     6
       Offering no evidence to contradict the district court’s
finding, Mylett avers that the promotion was “made retroactive in
pay only and for an insufficient period.” Absent reference to
any evidence in the record, this assertion is entirely
unsupported, and we adhere to the district court’s finding. See
Callon, 351 F.3d at 207 n.1.
     7
       Although formal reprimands may not be adverse employment
actions under Title VII, they qualify under § 1983. See Sharp,
164 F.3d at 933 n.21.
                            No. 03-40774
                                 -6-

     Mylett concedes that he was not actually demoted but

transferred to the “duty desk” in what was technically a lateral

transfer.    At least for purposes of § 1983, however, a transfer

may be considered the functional equivalent of a demotion and

qualify as an adverse employment action if the new position is

“objectively worse.”    See Sharp, 164 F.3d at 933.    Mylett claims

that the duty desk was objectively worse than both his previous

regular duty position and other light duty jobs.      His assignment

to the duty desk, however, was a temporary one (approximately one

year) to accommodate his need for a light duty position following

an injury.    “Undesirable work assignments are not adverse

employment actions.”    Southard v. Texas Bd. of Crim. Justice, 114

F.3d 539, 555 (5th Cir. 1997).    Although there may be

circumstances in which a temporary assignment is the functional

equivalent of a demotion, we do not find such circumstances here.

     Mylett offered no evidence to support his claim that he was

denied a promotion after his assignment to the duty desk.     The

district court found that the more prestigious and lucrative

positions for which Mylett applied either did not exist or were

already filled when he applied.    Mylett has not refuted these

findings.    If a position is not available, an employee has no

actionable claim for not being promoted.    See Mills v. Int’l

Brotherhood of Teamsters, 634 F.2d 282, 285 (5th Cir. 1981).

     It is well established that Mylett’s last three claimed

injuries – oppressive change of hours, denial of particular
                           No. 03-40774
                                -7-

shifts, and humiliation (including countermanding Mylett’s orders

in front of his subordinates and characterizing him as a liar) –

are not adverse employment actions.   See, e.g., Benningfield, 157

F.3d at 377 (holding that changes in work hours, denials of

requested shifts, accusations of theft and sabotage, and

undermining an employee’s performance by preventing people from

speaking to her are not adverse employment actions); Webb v.

Cardiotoracic Surgery Assocs. of N. Tex., 139 F.3d 532, 540 (5th

Cir. 1998) (holding that rude and uncivil treatment is not an

adverse employment action).

     Mylett’s argument that the sum of these actions violate

Title VII and § 1983 also fails.   A “campaign of retaliatory

harassment” is actionable only where it constitutes “a

constructive adverse employment action.”    Colson v. Grohman, 174

F.3d 498, 514 (5th Cir. 1999) (citing Sharp, 164 F.3d at 934 as

an example of a constructive demotion).    We find that these

actions, even in the aggregate, do not constitute an adverse

employment action.   Cf. Benningfield, 157 F.3d at 377.

     Mylett did not suffer an adverse employment action.    He

therefore failed to make a prima facie case of discrimination or

retaliation under Title VII or § 1983.    The district court’s

order granting summary judgment is therefore

     AFFIRMED.
