     Case: 10-20625 Document: 00511475897 Page: 1 Date Filed: 05/12/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                            May 12, 2011

                                       No. 10-20625                         Lyle W. Cayce
                                                                                 Clerk

MANUEL F. ZAMORA;
CHRISTOPHER ZAMORA,

                                                   Plaintiffs-Appellants
v.

CITY OF HOUSTON,

                                                   Defendant-Appellee




                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 4:07-CV-4510


Before WIENER, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
       Plaintiffs-Appellants Houston Police Department (HPD) Lieutenant
Manuel Zamora and his son, HPD Officer Christopher Zamora brought a Title
VII race discrimination suit against the Defendant-Appellee City of Houston,
raising claims of disparate treatment, disparate impact, and retaliation. The
City filed a motion for summary judgment, which the district court granted. We
VACATE and REMAND Christopher Zamora’s retaliation claim to the district


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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                                       No. 10-20625

court for reconsideration in light of a recent Supreme Court decision. With
respect to the remaining claims, we AFFIRM the summary judgment.
       I.     RETALIATION 1
       Christopher argues that the district court erred in finding that he had not
shown a genuine issue of fact with respect to his prima facie case of retaliation.2
Title VII makes it unlawful for an employer to retaliate against an employee who
opposes an employment practice made unlawful by Title VII. 42 U.S.C.
§ 2000e–3(a). To establish a prima facie case of retaliation, a plaintiff must
provide evidence that: (1) he engaged in an activity protected by Title VII; (2) the
employer took an adverse employment action against the plaintiff; and (3) a
causal connection exists between the protected activity and the adverse
employment action. See, e.g., Stewart v. Miss. Transp. Comm’n, 586 F.3d 321,
331 (5th Cir. 2009). We have defined protected activity as “opposition to any
practice rendered unlawful by Title VII, including making a charge, testifying,
assisting, or participating in any investigation, proceedings, or hearing under
Title VII.” Ackel v. Nat’l Commc’ns, Inc., 339 F.3d 376, 385 (5th Cir. 2003).
       Here, with respect to the first prong, the district court ruled that
Christopher did not demonstrate that he participated in an activity protected by
Title VII; instead, it concluded that Christopher’s retaliation claim was based on
the protected activity engaged in by his father, Manuel. Citing Fifth Circuit
precedent, the district court ruled that Christopher’s “allegation is legally
insufficient to establish a prima facie case of retaliation under Title VII, which



       1
           In the district court, Manuel also raised a claim of retaliation, which the district
court ruled did not raise a genuine issue of material fact. In his brief on appeal, Manuel
mentions his retaliation claim in the statement of issues, but does not brief it. Thus, Manuel
has abandoned any retaliation claim. Fed. R. App. P. 28(a)(9)(A); Dardar v. Lafourche Realty
Co., Inc., 985 F.2d 824, 831 (5th Cir. 1993).
       2
         Because the two Plaintiffs-Appellants are father and son and share the same last
name, this opinion refers to them individually by their first names.

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                                       No. 10-20625

requires that a plaintiff demonstrate retaliation because of his own protected
activity.” (emphasis added).
       Very recently, however, the Supreme Court held that an employee could
bring a Title VII claim on the basis of retaliation that he suffered in response to
protected activity engaged in by a co-worker who was a close family member.
Thompson v. N. Am. Stainless, LP, 131 S. Ct. 863 (2011). In Thompson, Eric
Thompson and his fiancée, Miriam Regalado, were both employed by North
American Stainless (NAS). Id. at 867. Regalado filed an EEOC complaint
alleging sex discrimination, and three weeks later, NAS terminated Thompson’s
employment. Id. Applying the Burlington3 test, the Supreme Court thought “it
obvious that a reasonable worker might be dissuaded from engaging in protected
activity if she knew that her fiance would be fired.” Id. at 868. Nonetheless,
NAS argued that if the Burlington standard is applied to “third-party reprisals,”
then the “employer [will be] at risk any time it fires any employee who happens
to have a connection to a different employee who filed a charge with the EEOC.”
Id. The Supreme Court rejected NAS’s argument, concluding that “there is no
textual basis for making an exception to it for third-party reprisals, and a
preference for clear rules cannot justify departing from statutory text.” Id.
Further, the Court declined to provide a “fixed class of relationships for which
third-party reprisals are unlawful.” Id. Instead, the Court opined that “firing
a close family member will almost always meet the Burlington standard, and
inflicting a milder reprisal on a mere acquaintance will almost never do so, but
beyond that we are reluctant to generalize.” Id.




       3
         Burlington N. & S.F.R. Co. v. White, 548 U.S. 53 (2006) (explaining 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”) (internal quotation marks and citations
omitted).

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       When ruling on the instant motion for summary judgment, the district
court did not have the benefit of the Supreme Court’s recent pronouncement that
a plaintiff may bring a retaliation claim based on a close family member’s
engaging in protected activity.4            Because the district court found that
Christopher made an insufficient showing on the first prong of the test, it did not
address the remaining two prongs of the test (1) whether the employer took an
adverse employment action against the plaintiff; and (2) whether a causal
connection exists between the protected activity and the adverse employment
action. Under these circumstances, we vacate and remand Christopher’s claim
of retaliation to allow the district court to reconsider the motion for summary
judgment in light of Thompson.
       II.      DISPARATE TREATMENT
                A.    Manuel
       Manuel contends that the district court erred in granting summary
judgment as to his claims of disparate treatment with respect to the denial of his
three requests to be transferred to other lieutenant positions. The district court
recognized our holding that “the denial of a transfer may be the objective
equivalent of the denial of a promotion and thus qualify as an adverse
employment action.” Alvarado v. Tex. Rangers, 492 F.3d 605, 614 (5th Cir.
2007).       Nonetheless, the district court ruled that Manuel did not provide
evidence showing that the three positions constituted anything more than purely
lateral transfers, which do not qualify as adverse employment actions. Burger
v. Cent. Apartment Mgmt., Inc., 168 F.3d 875, 879 (5th Cir. 1999). After having




       4
         Indeed, at the time of its ruling, the district court was bound by our precedent that
required a plaintiff’s claim of retaliation be based on the plaintiff’s engaging in his own
protected activity. See, e.g., Holt v. JTM Indus., 89 F.3d 1224, 1227 (5th Cir. 1996) (Age
Discrimination in Employment Act claim); DeHart v. Baker Hughes Oilfield Operations, Inc.,
214 F. App’x 437, 441 (5th Cir. 2007) (Title VII claim).

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                                    No. 10-20625

reviewed the evidence cited by Manuel, we agree with the district court that
Manuel has failed to raise a fact
issue with respect to whether the three other lieutenant positions were
objectively better than Manuel’s current lieutenant position. We thus affirm the
grant of summary judgment as to Manuel’s disparate treatment claim.
             B.    Christopher
      Christopher contends that the district court erred in granting summary
judgment against his claim of disparate treatment based on HPD transferring
him to a less desirable patrol assignment.         The district court ruled that
Christopher had failed to demonstrate a genuine issue of material fact with
respect to whether race discrimination was a motivating factor for his transfer.
Indeed, the court found that he “fail[s] even to argue that race discrimination
was the reason for [his] transfer. [Christopher’s] theory of the case . . . is that
HPD personnel forced [him] to transfer out of the Crime Reduction Unit, and to
take a less prestigious patrol position, in order to retaliate against him for the
EEOC charge and lawsuit filed by his father.” We have reviewed Christopher’s
claim and agree with the district court that Christopher’s theory of this claim
was not actually discrimination, but is instead one of retaliation. Thus, the
City’s motivation for transferring him to a purportedly lesser position did not
involve discrimination.    We affirm the district court’s grant of summary
judgment with respect to Christopher’s claim of disparate treatment.
      III.   DISPARATE IMPACT
      Manuel contends that the district court erred in granting summary
judgment on his claim of disparate impact based on HPD’s procedures for
promotion to the rank of captain. The district court ruled that the “Plaintiffs
have provided inadequate explanation of the statistics, and have made no proffer
of expert testimony to interpret them.” The court further noted that their
briefing did not “control or account for other variables that may affect the

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                                  No. 10-20625

promotion decisions cited.” Finally, the court found that Manuel did not satisfy
the requirement of showing causation by conducting a systemic analysis of the
disparate effects of all the promotional criteria for each rank. See Johnson v.
Uncle Ben’s, Inc., 965 F.2d 1363, 1367 (5th Cir. 1992). On appeal, Manuel has
failed to show that the district court erred in its ruling, and thus we AFFIRM,
essentially for the reasons stated by the district court.
      For the above reasons, the district court’s judgment is AFFIRMED in part
and VACATED and REMANDED in part.




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