                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           APR 8 1999
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    ALEX C. TRUJILLO,

                Plaintiff-Appellant,

    v.                                                   No. 98-2143
                                                 (D.C. No. CIV-97-1046-RLP)
    NEW MEXICO DEPARTMENT OF                              (D. N.M.)
    CORRECTIONS,

                Defendant-Appellee.




                            ORDER AND JUDGMENT           *




Before BRORBY , EBEL , and LUCERO , Circuit Judges.




         Alex C. Trujillo appeals the district court’s summary judgment dismissal of

his Title VII employment discrimination and retaliation complaint against




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
defendant, the New Mexico Department of Corrections.          1
                                                                  We have jurisdiction

under 28 U.S.C. § 1291, and we reverse in part and affirm in part.

       We review the grant of summary judgment de novo, and apply the same

legal standard used by the district court under Fed. R. Civ. P. 56(c).       See

Richmond v. ONEOK, Inc. , 120 F.3d 205, 208 (10th Cir. 1997). “Summary

judgment is appropriate if ‘there is no genuine issue as to any material fact and . .

. the moving party is entitled to a judgment as a matter of law.’”        Id. (quoting

Rule 56(c)). “We construe the factual record and reasonable inferences therefrom

in the light most favorable to the nonmovant.”        Id.


                                     I. Background.

       Mr. Trujillo was hired by defendant in 1988 as a Psychologist II at the

Central New Mexico Correctional Facility in Los Lunas, New Mexico. In 1991,

he was promoted to Psychologist III and to Chief of the Mental Health Services in

the Department of Corrections’ Santa Fe facility. However, a newly-appointed

Bureau Chief removed Mr. Trujillo as Chief of Mental Health Services at the

Sante Fe facility in November 1992. According to Mr. Trujillo, although his job

classification remained “Psychologist III,” he was supervised by a “Psychologist


1
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.

                                             -2-
II” after his demotion, and his role and responsibilities thereafter were more in

keeping with those of a “Psychologist II,” rather than a “Psychologist III.”   See

Appellant’s Appendix at 32, 70.

       On May 16, 1994, Mr. Trujillo, who is part Hispanic and part Native

American, filed a complaint with the Equal Employment Opportunity Commission

(EEOC), alleging that he was demoted from his position at the Sante Fe facility

and replaced by a lesser-qualified Anglo female because of his race, national

origin and sex. The EEOC issued a “right to sue letter” on September 25, 1995,

but Mr. Trujillo did not file a lawsuit arising out of his 1992 demotion.

       In February 1995, Mr. Trujillo applied for a Psychologist III vacancy as

Chief of the Mental Health Program at the Central New Mexico Correctional

Facility in Los Lunas. Mr. Trujillo claims that he was a target for retaliatory

action after he filed his 1994 EEOC complaint, and that one of the primary

reasons he applied for the Los Lunas vacancy was to escape the hostile work

environment he was experiencing at the Sante Fe facility. An interview

committee of four professionals was established to interview candidates for the

Chief of Mental Health position. The committee reported to Dr. Eli Fresquez,

who had the ultimate hiring authority, that it unanimously recommended Mr.

Trujillo be hired for the position.   See Appellant’s Appendix at 74. The record

includes an affidavit from one of the interview committee members stating that


                                            -3-
the committee members thought Mr. Trujillo was the best qualified to fill the

position. Id. at 99, 101.

       However, Dr. Fresquez rejected the committee’s recommendation and

interviewed other candidates on his own. Dr. Fresquez did not interview Mr.

Trujillo, despite the fact that he was the committee’s unanimous recommendation.

Mr. Trujillo claims he was told that “a selection will not be made at this time.”

See Appellant’s Appendix at 132. In fact,     Dr. Fresquez selected an Anglo female

for the position. The record contains an affidavit from one of the committee

members stating that, after he learned that Mr. Trujillo had not been selected, he

was told by another committee member that Mr. Trujillo’s transfer “could be

problematic as Trujillo had a suit against the [D]epartment.”   Id. at 100. 2 Mr.

Trujillo claims that the woman selected for the Chief of Mental Services position

was less qualified than he for the position because she lacked mental health

services experience in the corrections field.


2
       Defendant requested this affidavit be struck because it contained hearsay.
The magistrate judge did not consider this affidavit, concluding that the term
“suit” referred to an unidentified lawsuit other than Mr. Trujillo’s 1994 EEOC
complaint. See Magistrate Judge’s Order at 6 n.2. We agree with Mr. Trujillo
that the magistrate judge erred in not considering the affidavit on this basis. The
court is obligated to view the evidence presented in the light most favorable to
Mr. Trujillo, as the nonmoving party. Viewing the record in this light, there is no
basis for the magistrate judge’s conclusion that the ambiguous reference to a
“suit” was not Mr. Trujillo’s 1994 EEOC complaint. The magistrate judge did not
rule on the question of whether the affidavit was inadmissable as hearsay; thus,
that issue is not before us.

                                            -4-
      Mr. Trujillo filed a second EEOC complaint on July 7, 1995, alleging that

defendant denied his requested transfer to Los Lunas because of his 1994 EEOC

complaint. On January 31, 1997, the EEOC issued a “right to sue letter,”

concluding that reasonable cause existed to believe the defendant had violated

Title VII by denying Mr. Trujillo’s transfer. The EEOC also concluded that the

defendant had failed to maintain proper documentation of its hiring, promotions,

and transfers in violation of 29 C.F.R. § 1602.31. The EEOC subsequently

advised Mr. Trujillo that conciliation with defendant was unsuccessful, that it

would not file suit, and that he had ninety days within which to file a Title VII

action against defendant. On August 6, 1997, Mr. Trujillo filed this action within

the requisite ninety days.

      Mr. Trujillo’s present complaint alleges that he was not selected for the Los

Lunas vacancy because of his 1994 EEOC discrimination charge, and that the

failure to transfer him was a separate act of discrimination based on his national

origin. He also alleges that he was subjected to systematic retaliation and a

hostile work environment after he filed his 1994 EEOC complaint, and that he

was ultimately forced to resign because of the hostile work environment created

by defendant’s retaliatory actions.

      The magistrate judge, sitting by designation, dismissed the complaint,

finding as a matter of law that defendant’s denial of Mr. Trujillo’s requested


                                         -5-
lateral transfer to Los Lunas did not constitute an adverse employment action, a

requisite element of a Title VII employment discrimination claim.


                                      II. Analysis.

                                  A. Retaliation Claim.

       Title VII makes it an unlawful employment practice “for an employer to

discriminate against any of his employees . . . because he has made a charge,

testified, assisted, or participated in any manner in an investigation, proceeding,

or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a). Section 2000e-2(a)

lists actions that can constitute discrimination, specifying a refusal to hire, a

discharge, or any discriminatory treatment with respect to “compensation, terms,

conditions, or privileges of employment.” The three-pronged burden-shifting

analysis set forth in   McDonnell Douglas Corp. v. Green        , 411 U.S. 792, 802-04

(1973), applies to Mr. Trujillo’s claims. In the absence of direct evidence, a

prima facie case of retaliation requires a plaintiff to show that (1) he engaged in

protected opposition to discrimination; (2) he was subjected to adverse

employment action by the employer; and (3) a causal connection exists between

the protected activity and the adverse action.     See McCue v. Kansas, Dep’t. of

Human Resources , 165 F.3d 784, 789 (10th Cir. 1999). “If a prima facie case is

established, the burden of production shifts, and the defendant must articulate a

legitimate, nondiscriminatory reason for the adverse action.”        Purrington v.

                                             -6-
University of Utah , 996 F.2d 1025, 1033 (10th Cir. 1993). If the employer offers

such a reason, the plaintiff may survive summary judgment by showing that there

is a genuine dispute of material fact as to whether the proffered reason for the

challenged action is pretextual.   See Richmond , 120 F.3d at 208.

         Mr. Trujillo contends that the magistrate judge erred in holding that

defendant’s denial of his Los Lunas transfer request, under the circumstances

presented here, did not amount to an adverse employment action. We conclude

that the magistrate judge applied an incorrect and overly strict definition of

“adverse employment action,” and we agree that the magistrate judge erred in

holding that, as a matter of law, defendant’s failure to select Mr. Trujillo for the

Los Lunas vacancy was not an adverse employment action.

         The magistrate judge concluded that the Tenth Circuit had not precisely

defined what constitutes an adverse employment action and, citing to an

unpublished district court opinion, concluded that such an action must be

“materially detrimental.” Magistrate Judge’s Order at 5.     Several months after the

magistrate judge’s ruling, however, this court made clear that we reject a

requirement that an employment action must be material in order to be adverse,

stating that this court “has never recognized such a ‘materiality’ requirement and

we decline to do so here.”    Jeffries v. Kansas , 147 F.3d 1220, 1232 (10th Cir.

1998).


                                           -7-
       The Tenth Circuit liberally defines the phrase “adverse employment

action.” See Gunnell v. Utah Valley State College      , 152 F.3d 1253, 1264 (10th

Cir. 1998); Jeffries , 147 F.3d at 1232. Such actions are not simply limited to

monetary losses in the form of wages or benefits.      See Jeffries , 147 F.3d at 1232.

We take “a case-by-case approach,” examining the unique factors relevant to the

situation at hand.   Id. For example, in Corneveaux v. Cuna Mutual Insurance

Group , 76 F.3d 1498, 1502 (10th Cir. 1996), we found adverse employment action

based on the fact that the employee had to “go through several hoops” in order to

obtain her severance benefits. In     Jeffries , we held that verbal interrogation and

reprimand, threats to withdraw supervision and not renew the employee’s contract

were sufficient to constitute adverse employment actions even though the actions

did not actually have an adverse impact on the terms and conditions of the

employee’s employment.      See 147 F.3d at 1232-33.

       The Tenth Circuit recently held that an involuntary lateral transfer, without

more, does not constitute an “adverse employment action” where the transfer

merely increased the employee’s commute and did not alter her salary, benefits, or

elementary school teaching responsibilities, and the transfer was prompted by

decreasing student enrollment.      See Sanchez v. Denver Pub. Schs. , 164 F.3d 527,

532 (10th Cir. 1998).   The court wrote, “ we will not consider ‘a mere

inconvenience or an alteration of job responsibilities’ to be an adverse


                                            -8-
employment action.” Id. (citing Crady v. Liberty Nat'l Bank & Trust Co., 993

F.2d 132, 136 (7th Cir. 1993); and Burlington Indus., Inc. v. Ellerth, 118 S. Ct.

2257, 2268 (1998) (conduct is adverse employment action if it “constitutes a

significant change in employment status, such as hiring, firing, failing to promote,

reassignment with significantly different responsibilities, or a decision causing a

significant change in benefits”)). Our holding in Sanchez is consistent with

several circuits which have held that a purely lateral transfer is not an adverse

employment action. See Doe v. Dekalb County Sch. Dist., 145 F.3d 1441, 1452

(11th Cir. 1998) (transfer was not a demotion; transfer had same salary, benefits,

seniority, and relative level of prestige); Ledergerber v. Stangler, 122 F.3d 1142,

1144 (8th Cir. 1997) (same); Kocsis v. Multi-Care Management, Inc., 97 F.3d

876, 886 (6th Cir. 1996) (transfer that did not entail a loss of pay, benefits, duties,

or prestige was not adverse action); Williams v. Bristol-Myers Squibb Co., 85

F.3d 270, 274 (7th Cir. 1996) (purely lateral transfer which does not involve

demotion in form or substance was not adverse action); Crady, 993 F.2d at 136

(lateral transfer with semantic change in title and alteration of job responsibilities

not adverse employment action).

       However, where the transfer is not purely lateral, that is, where the transfer

is objectively equivalent to a demotion, courts in other circuits have recognized

the transfer as an adverse action.   See de la Cruz v. New York City Human


                                          -9-
Resources Admin. Dep’t of Social Servs.         , 82 F.3d 16, 21 (2d Cir. 1996) (transfer

to a less prestigious job with little opportunity for professional growth arguably

altered the terms and conditions of employment and was an adverse employment

action in a Title VII discrimination action);        Torre v. Casio, Inc. , 42 F.3d 825, 831

n.7 (3d Cir. 1994) (allegation of transfer to dead-end job sufficient to create

material fact issue of adverse employment action);          Collins v. Illinois , 830 F.2d

692, 704 (7th Cir. 1987) (transfer an adverse employment action where the

transfer was really a demotion; employee lost her office and her professional

listing as a library consultant).

       The First Circuit has held that an employer’s refusal to grant an employee’s

requested transfer could be an adverse employment action in a Title VII

retaliation claim where the employee presented evidence showing that similar

transfers for hardship reasons were so customary that they are a “privilege” of

employment. See Randlett v. Shalala , 118 F.3d 857, 862 (1st Cir. 1997). The

Randlett court noted that the “terms, conditions, or privilege” language of

§ 2000e2-(a) is open-ended, citing Hishon v. King & Spalding, 467 U.S. 69,

75-76 (1984), in which the Supreme Court extended Title VII coverage to

promotions to partner in a law firm.       Id. at 862. It wrote, “we cannot accept

the . . . view that a refusal to transfer is automatically outside Title VII.”      But see

Burger v. Central Apartment Management, Inc.            , No. 98-10290, 1999 WL 101392,


                                              -10-
at * 3-4 (5th Cir. Mar. 16, 1999) (holding that employer’s refusal to grant an

employee’s request for a purely lateral transfer does not constitute an adverse

employment action; applying “ultimate employment action” standard to definition

of adverse action).

      Consistent with our “case-by-case approach to determining whether a given

employment action is ‘adverse,’”    Jeffries , 147 F.3d at 1232, we agree with the

First Circuit’s rejection of an automatic rule that a refusal to transfer is outside

the scope of an “adverse employment action.”       See Randlett , 118 F.3d at 862. In

particular, we note that it is well-established that a failure to promote constitutes

an adverse employment action in a Title VII retaliation claim.     See e.g. ,

Burlington, 118 S. Ct. at 2268 (listing failure to promote as a tangible

employment action); Kenworthy v. Conoco, Inc. , 979 F.2d 1462, 1469-70 (10th

Cir. 1992); cf. Sprague v. Thorn Americas, Inc.    , 129 F.3d 1355, 1362 (10th Cir.

1997) (describing elements of discriminatory failure to promote claim in sex

discrimination case).

      In the case at hand, Mr. Trujillo, whose job was classified as a

“Psychologist III,” was not selected for a Psychologist III opening at another

facility. It is undisputed that this transfer would not have changed Mr. Trujillo’s

salary, benefits, or job classification. However, Mr. Trujillo’s EEOC affidavit

supports an inference that the transfer would have been the objective equivalent


                                           -11-
to a promotion. He stated in his brief that the Los Lunas position would have

given him the job title of Chief of Mental Health Program for the facility, and he

averred in his EEOC affidavit that the job would have provided him with an

opportunity to supervise employees and to direct a mental health program.       See

Appellant’s Appendix at 84-85, 134. Indeed, defendant characterizes the Los

Lunas vacancy as “a very important position.” Appellee’s Br. at 3. This

significant increase in job responsibility and prestige, viewed in the light most

favorable to Mr. Trujillo, suggests the transfer would have been equivalent to a

promotion. Thus, under this circuit’s liberal definition of “adverse employment

action,” the magistrate judge erred in holding that, as a matter of law, defendant’s

failure to select Mr. Trujillo for the Los Lunas Chief of Mental Health Services

position was not an adverse employment action.

      Because the magistrate judge concluded that Mr. Trujillo had not shown an

adverse employment action, it did not reach the other elements of the       McDonnell

Douglas burden shifting analysis. Thus, we do not decide these issues.

                                B. Remaining Claims.

      Mr. Trujillo asks us to decide the magistrate judge erred in not considering

his claim that defendant’s selection of a less-qualified Anglo female for the Los

Lunas vacancy was a separate act of discrimination based on his national origin.

See Reynolds v. School Dist. No. 1, Denver, Colo.     , 69 F.3d 1523, 1534 (10th Cir.


                                           -12-
1995) (holding that “plaintiff must typically show that he or she (1) belongs to a

minority group; (2) was qualified for the promotion; (3) was not promoted; and

(4) that the position remained open or was filled with a non-minority” to establish

prima facie case of race discrimination for a failure to promote claim). Mr.

Trujillo’s 1995 EEOC complaint did not allege defendant’s failure to transfer him

constituted race discrimination. However, it appears from the record that the

EEOC may have investigated such an allegation. The EEOC’s “right to sue”

letter includes the statement that “[e]vidence of record and witness testimony

shows [Mr. Trujillo] was better qualified for the job vacancy [at Los Lunas] than

the individual selected for the position.” Appellant’s Appendix at 112. The

magistrate judge’s order makes no mention of Mr. Trujillo’s race discrimination

claim. On remand, the district court should address this claim, including whether

Mr. Trujillo exhausted his administrative remedies as to this charge.   See Seymore

v. Shawver & Sons, Inc. , 111 F.3d 794, 799 (10th Cir.) (holding that a plaintiff

generally may not bring a Title VII action based upon claims that were not part of

a timely-filed EEOC charge),    cert. denied , 118 S. Ct. 342 (1997), and 29 C.F.R.

§ 1601.12(b) (providing that claims which (1) correct technical defects or

omissions; (2) clarify or amplify allegations made in the original charge; or (3)

add additional Title VII violations “related to or growing out of the subject matter




                                           -13-
of the original charge” may relate back to the filing date of the original EEOC

charge and, therefore, may be considered timely).

         Mr. Trujillo also asks us to review the dismissal of his allegations of

systemic retaliation after the filing of his 1995 EEOC complaint. He alleges this

retaliation was in the form of withdrawn work assignments, reduced professional

standing, and creation of a hostile working environment. We agree with the

magistrate judge that Mr. Trujillo’s only evidence consists of speculation and

conclusory allegations, which is insufficient to withstand a properly supported

summary judgment motion.       See Elsken v. Network Multi-Family Sec. Corp.       , 49

F.3d 1470, 1476 (10th Cir. 1995). Because Mr. Trujillo based his constructive

discharge claim on the allegedly hostile environment created by these unspecified

retaliatory actions, we find no error in the magistrate judge’s dismissal of this

claim.

         Finally, many of Mr. Trujillo’s allegations of discrimination relate to his

1992 demotion. We agree with the magistrate judge that these claims of

discrimination, which were the basis of his 1994 EEOC complaint and the

EEOC’s 1995 “right to sue” letter, are barred by the ninety-day limitation period.

See 42 U.S.C. § 2000e-5(f)(1).

         In summary, we REVERSE and REMAND the magistrate judge’s dismissal

of Mr. Trujillo’s retaliation claim based on defendant’s failure to select him for


                                           -14-
the Los Lunas vacancy. On remand, we instruct the district court to address Mr.

Trujillo’s claim that the failure to select him for this vacancy also constituted

racial discrimination. We AFFIRM the dismissal of Mr. Trujillo’s remaining

allegations of retaliatory action and his constructive discharge claim.

                                        ENTERED FOR THE COURT



                                        Carlos F. Lucero
                                        Circuit Judge




                                         -15-
