Decreased Job Duties Can Amount to Demotion, 5th Cir. Rules

By Mark Wilson, Esq. on September 08, 2014 | Last updated on March 21, 2019

The facts of this case are pretty simple: Allen Thompson was a detective in Waco, Texas. Thompson and two other detectives were found to have falsified their time sheets. Thompson, but not the other two detectives, was subjected to written restrictions. Thompson is black; the other two detectives aren't. Hopefully you can see the Title VII employment discrimination lawsuit coming.

A federal district court dismissed Thompson's suit on the ground that he had failed to allege an adverse employment action. Last week, the Fifth Circuit reversed, finding that restrictions on his job duties were the equivalent of a demotion.

Increased Restrictions

Thompson was prohibited from logging evidence, searching for evidence without supervision, working undercover, writing affidavits, and being the lead investigator. Basically, Thompson said he was stripped of the "integral and material responsibilities of a detective." His job ability was hindered, the job was less interesting, and his promotion prospects diminished. All of this, he said, amounted to the equivalent of a demotion.

The district court characterized these prohibitions as "the loss of some job responsibilities." He retained the same job title, pay, and benefits. Nevertheless, the Fifth Circuit reversed. Remember what Oliver Wendell Holmes said about the law being a matter of degree? Well, here it is: According to the Fifth Circuit, it's not axiomatic that a loss of job responsibilities is never enough to raise a discrimination claim. The loss may be "so significant and material that it rises to the level of an adverse employment action." The Fifth Circuit found that to be the case: Thompson's loss of job duties effectively rendered him an assistant detective, rather than a detective.


The majority opinion garnered a dissent by Judge Jerry Smith, who would have affirmed the district court's conclusion that Thompson didn't state a claim. This is because of the difference between establishing a prima facie case for employment discrimination and properly pleading a claim under the statute. Pleading an "adverse employment action" requires specific facts; the inference of such an action is part of the McDonnell Douglas burden-shifting calculus, not the elements of the statute. The majority, said Smith, substituted the evidentiary standard for the pleading standard.

The dissent also took much more literally the statute's meaning of "ultimate employment decision," which includes only "hiring, firing, promoting, failing
to promote, demoting, granting leave, and compensating." Any other employment decisions, even if adverse, aren't actionable.

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