Diana Thomas v. David Kent, et al

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UNPUBLISHED OPINION FILED. [09-30764 Affirmed] Judge: WED , Judge: JLW , Judge: JLD. Mandate pull date is 12/01/2010 [09-30764]

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Diana Thomas v. David se: 09-30764 Ca Kent, et al Document: 00511290840 Page: 1 Date Filed: 11/10/2010 Doc. 0 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED November 10, 2010 N o . 09-30764 Lyle W. Cayce Clerk D I A N A THOMAS, P la in t if f -A p p e lla n t v. D A V I D KENT, Individually and as an employee of the City of Shreveport; C I T Y OF SHREVEPORT; RICHARD SALLEY, Individually and as an e m p lo y e e of the City of Shreveport, D e fe n d a n t s -A p p e lle e s A p p e a l from the United States District Court for the Western District of Louisiana U S D C No. 5:06-cv-1078 B e fo r e DAVIS, WIENER, and DENNIS, Circuit Judges. P E R CURIAM:* P la in t iff-A p p e lla n t Diana Thomas, a Shreveport police officer, filed this s u it in the district court seeking recovery for race and gender discrimination and r e t a lia tio n under Title VII, 42 U.S.C. 1981, 42 U.S.C. 1983, and several p r o v is io n s of the United States Constitution and Louisiana law against D e fe n d a n t s -A p p e lle e s Thomas Kent and Richard Salley, employees of the 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. * Dockets.Justia.com Case: 09-30764 Document: 00511290840 Page: 2 Date Filed: 11/10/2010 No. 09-30764 S h r e v e p o r t Police Department, and against the City of Shreveport itself. Thomas alleged that Defendants failed to promote her to a position in the Crime S c e n e Investigation Unit ("CSIU") and retaliated against her for discriminatory r e a s o n s . The district court granted partial summary judgment in favor of the D e fe n d a n t s on the retaliation claim and the discrimination claim went to trial. After trial, the jury returned a verdict denying Thomas relief on her d is c r im in a t io n claim. The jury found that the CSIU position Thomas sought was a purely lateral transfer and, therefore, that Thomas did not suffer an adverse e m p lo y m e n t action, which is a prima facie element of her discrimination claim fo r failure to promote. See Alvarado v. Texas Rangers, 492 F.3d 605, 612 (5th C ir . 2007) ("It is well established that the denial of a purely lateral transfer is n o t an adverse employment action redressible under Title VII."). On this appeal, Appellant challenges the sufficiency of the evidence s u p p o r t in g the jury's verdict. Thomas, however, admittedly failed to file a m o t io n for judgment as a matter of law before or after the verdict. We cannot r e v ie w the sufficiency of the evidence supporting a jury's verdict unless the a p p e a lin g party made a motion for judgment as a matter of law under Federal R u le of Civil Procedure 50(a) prior to submitting the issue to the jury and, after t h e verdict, filed either a Rule 50(b) motion for judgment as a matter of law or a Rule 59 motion for a new trial. Unitherme Food Sys., Inc. v. Swift-Eckrich, I n c ., 546 U.S. 394, 401-02 (2006); Downey v. Strain, 510 F.3d 534, 543-44 (5th C ir . 2007) (describing the Unitherme decision). Where a party has failed to p r e s e r v e the issue of sufficiency of the evidence for appellate review by failing t o file the requisite motions, "the question before this Court is not whether there w a s substantial evidence to support the jury verdict, but whether there was any e v id e n c e to support the jury verdict." Shepherd v. Dallas County, 591 F.3d 445, 4 5 6 (5th Cir. 2009) (internal quotation marks and citation omitted). 2 Case: 09-30764 Document: 00511290840 Page: 3 Date Filed: 11/10/2010 No. 09-30764 T h u s , if any evidence supports the jury's verdict that the CSIU position w a s a purely lateral transfer for Thomas, we must affirm. Our review of the r e c o r d reveals that the verdict is supported by ample evidence. For example, the ju r y heard testimony from a number of witnesses in the police department to the e ffe c t that the CSIU job was generally considered a lateral transfer within the d e p a r t m e n t . The evidence before the jury also established that the base salary, b e n e fits , and rank of the CSIU job were the same as Thomas's old position. Further, the jury was presented with evidence showing that during the relevant y e a r s Thomas earned roughly the same amount of overtime compensation as the in d iv id u a l hired for the CSIU job, and this evidence established that in the c r it ic a l year of 2003 there was only an approximate $400 difference in their o v e r t im e earnings. In any event, notwithstanding counsel's arguments that a d e m o n s t r a b le difference in overtime compensation would require reversal of the ju r y 's verdict, compensation is not dispositive but is only one of many factors in d e t e r m in in g whether a position is considered a purely lateral transfer rather t h a n an objectively better position. Alvarado, 492 F.3d at 614. Therefore, ample e v id e n c e supports the jury's verdict.1 T h o m a s also challenges the district court's grant of partial summary ju d g m e n t on the retaliation claim. Thomas argued to the district court that S a lle y , her supervisor, filed a grievance against her stating his opinion that she w a s being insubordinate and intentionally vexatious in her complaints about not b e in g given the CSIU job. She argued that the grievance was in retaliation for Thomas challenges several of the district court's evidentiary rulings. As the jury was required to find whether Thomas suffered an adverse employment action as an element of her discrimination claim, we deny most of her evidentiary challenges as moot. Evidence relating to the "work environment" of the officer hired for the CSIU position, however, was relevant to the issue whether the difference between Thomas's old position and the CSIU position were material, and thus should have been admitted. When we view the record evidence as a whole, we perceive a surfeit of evidence that hers was a purely lateral transfer and conclude that exclusion of these relatively minor details was harmless error. 1 3 Case: 09-30764 Document: 00511290840 Page: 4 Date Filed: 11/10/2010 No. 09-30764 h e r complaints. On our de novo review, we conclude that the summary judgment e v id e n c e reveals that the grievance had no adverse effect on Thomas. It did not g o in her personnel file or otherwise have any adverse effect on her employment. To amount to retaliation, Burlington Northern requires that the action must be s u c h that it would "dissuade a reasonable worker from making or supporting a c h a r g e of discrimination." Burlington Northern & Santa Fe Ry. Co. v. White, 548 U .S . 53, 68 (2006). Thomas produced no summary judgment evidence that this c o m p le t e ly internal memorandum had such an effect. I n sum, we are satisfied that the jury's finding that the CSIU position A p p e lla n t sought was a purely lateral transfer is supported by more than enough e v id e n c e to meet our standard of review here. Shepherd, 591 F.3d at 456. We a ls o agree with the district court's grant of summary judgment on Thomas's r e t a lia tio n claim. A F F IR M E D . For these reasons, the district court's judgment is 4

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