          IN THE UNITED STATES COURT OF APPEALS

                       FOR THE FIFTH CIRCUIT

                             ___________________           United States Court of Appeals
                                                                    Fifth Circuit

                                No. 13-50718                      FILED
                             ___________________           February 26, 2015
                                                             Lyle W. Cayce
ALLEN THOMPSON,                                                   Clerk

            Plaintiff - Appellant

v.

CITY OF WACO, TEXAS,

            Defendants - Appellee

                           _______________________

            Appeal from the United States District Court for the
                      Western District of Texas, Waco
                         _______________________

                ON PETITION FOR REHEARING EN BANC
                 (Opinion: September 3, 2014, 764 F.3d 500)


Before SMITH, CLEMENT, and HIGGINSON, Circuit Judges.

HIGGINSON, Circuit Judge:

      The court having been polled at the request of one of its members, and a
majority of the judges who are in regular active service and not disqualified
not having voted in favor (Fed. R. App. P. 35 and 5TH Cir. R. 35), the Petition
for Rehearing En Banc is DENIED. Judge Jolly, joined by Judges Jones,
Smith, and Owen, dissents from the court’s denial of rehearing en banc, and
                                No. 13-50718

his dissent is attached.
      In the en banc poll, four judges voted in favor of rehearing (Judges Jolly,
Jones, Smith, and Owen) and eleven judges voted against rehearing (Chief
Judge Stewart and Judges Davis, Dennis, Clement, Prado, Elrod, Southwick,
Haynes, Graves, Higginson, and Costa).



ENTERED FOR THE COURT:


__________________________________
STEPHEN A. HIGGINSON
UNITED STATES CIRCUIT JUDGE




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                                  No. 13-50718

E. GRADY JOLLY, Circuit Judge, dissenting from the denial of rehearing en
banc, joined by JONES, SMITH, and OWEN, Circuit Judges:
      My views of this case are consistent with those that are thoroughly
discussed in Judge Smith’s dissent.          I only present a few examples to
summarize briefly the inconsistencies in our opinions dealing with the question
at issue; that is, whether there has been an adverse employment action
sufficient to support a claim under Title VII: For Title VII discrimination
claims, we have said that a “transfer[] . . . is insufficient to establish an adverse
employment action.” Pegram v. Honeywell, Inc., 361 F.3d 272, 283 (5th Cir.
2004) (emphases added) (applying Title VII principles to a § 1981 case and
holding that the plaintiff’s “claim that his reassignment . . . was a less
prestigious or desirable transfer, without more, [does] not lift him over the
hurdle of summary judgment for the purpose of an adverse employment
action”).   Consistent with this holding, we later said that “[a]dverse
employment actions include only ultimate employment decisions such as
hiring, granting leave, discharging, promoting, or compensating.” McCoy v.
City of Shreveport, 492 F.3d 551, 559 (5th Cir. 2007) (emphasis added) (holding
that “placing [an employee] on paid leave—whether administrative or sick—
was not an adverse employment action”). Less than a week later, we retreated
from this holding and said that the “denial of a transfer may . . . qualify as an
adverse employment action, even if the new position would not have entailed
an increase in pay or other tangible benefits.” Alvarado v. Texas Rangers, 492
F.3d 605, 614 (5th Cir. 2007) (emphases added). Still later, we returned to our
holding in McCoy and said, “[F]or Title VII discrimination claims, an adverse
employment action ‘include[s] only ultimate employment decisions such as
hiring, granting leave, discharging, promoting, or compensating.’ ” Bouvier v.
Northrup Grumman Ship Sys., Inc., 350 F. App’x 917, 922 (5th Cir. 2009)



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                                 No. 13-50718

(quoting McCoy, 492 F.3d at 559)).       Now, this panel creates a new legal
standard, stating that a “change in or loss of job responsibilities—similar to the
transfer and reassignment contexts—may be so significant and material that
it rises to the level of an adverse employment action.” Thompson v. City of
Waco, Texas, 764 F.3d 500, 504 (5th Cir. 2014) (emphases added).
      Given this panel ping-pong, a particular panel can find language, and
indeed even legal principles, that likely will support any conclusion that it may
reach. The next panel that addresses the question of the criterion for an
adverse employment action is surely not bound by the majority opinion in this
case because of the statements that we have issued in prior cases—where one
can find the language or reasoning to produce a different result. A loser under
the opinion of Panel X may well have been a winner under Panel Y.
      In short, our cases give district judges and litigants no guidance as they
attempt to thread their way through our confusion. They deserve better. We
should give them better.
      For these reasons, I respectfully dissent from the failure of the Court to
vote this case en banc to produce a clear standard so that all litigants get the
same deal from this Court.




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