Jatonya Muldrow v. City of St. Louis, State of Mo ( 2022 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 20-2975
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Jatonya Clayborn Muldrow
Plaintiff - Appellant
v.
City of St. Louis, State of Missouri; Michael A. Deeba, in his individual and
official capacity
Defendants - Appellees
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United States
Amicus Curiae
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Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
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Submitted: December 16, 2021
Filed: April 4, 2022
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Before LOKEN, SHEPHERD, and STRAS, Circuit Judges.
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SHEPHERD, Circuit Judge.
Appellant Sergeant Jatonya Clayborn Muldrow of the St. Louis Police
Department (Department) brought Title VII claims against the City of St. Louis and
state law claims against both the City of St. Louis and Captain Michael Deeba of the
Department. The district court 1 granted the City of St. Louis and Captain Deeba’s
motion for summary judgment, finding in favor of the City of St. Louis on Sergeant
Muldrow’s Title VII claims and simultaneously dismissing her state law claims
against the City of St. Louis and Captain Deeba. Sergeant Muldrow now appeals
the district court’s grant of summary judgment. Having jurisdiction pursuant to 28
U.S.C. § 1291, we affirm.
I.
In 2008, Sergeant Muldrow was transferred from her position as a patrol
detective to the Department’s Intelligence Division. At various points during her
time in the Intelligence Division, Sergeant Muldrow worked on public corruption
and human trafficking cases, served as head of the Gun Crimes Intelligence Unit,
and oversaw the Gang Unit. Sergeant Muldrow maintained a traditional schedule in
which she worked Monday through Friday from 8:00 a.m. to 4:00 p.m. or 9:00 a.m.
to 5:00 p.m. In 2016, while she was still assigned to the Intelligence Division, the
Federal Bureau of Investigation (FBI) deputized Sergeant Muldrow as a Task Force
Officer (TFO) for its Human Trafficking Unit. As a TFO, Sergeant Muldrow had
the same privileges as an FBI agent: access to FBI field offices and databases, the
opportunity to work in plain clothes, access to an unmarked FBI vehicle, authority
to conduct human-trafficking related investigations outside of the St. Louis city
limits, and the opportunity to earn up to $17,500 in annual overtime pay.
In 2017, Interim Police Commissioner Lawrence O’Toole replaced the
Commander of Intelligence, Captain Angela Coonce, with Captain Deeba. Shortly
1
The Honorable Audrey G. Fleissig, United States District Judge for the
Eastern District of Missouri.
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after assuming his new role, Captain Deeba began making personnel changes.2 He
announced the transfer or detachment of 17 male officers and 5 female officers
across the Department from various positions and of various ranks. Captain Deeba
transferred four officers, two male and two female, out of the Intelligence Division,
including Sergeant Muldrow, who he transferred to the Fifth District, effective June
12, 2017. Once assigned to the Fifth District, Sergeant Muldrow was responsible
for the administrative upkeep and supervision of officers on patrol, reviewing and
approving arrests, and responding to “Code 1” calls for service for crimes such as
homicides, robberies, assaults, and home invasions. As a result of her transfer,
Sergeant Muldrow was required to work a rotating schedule including weekends,
wear a police uniform, drive a marked police vehicle, and work within a controlled
patrol area. Sergeant Muldrow’s salary remained the same, and although she was
no longer eligible for the FBI’s $17,500 annual overtime pay, other overtime
opportunities were available to her.
Following this transfer, Sergeant Muldrow did not immediately return the
FBI-issued vehicle and credentials. Captain Deeba asked Sergeant Muldrow’s FBI
supervisor, Agent Jennifer Lynch, to notify him once Sergeant Muldrow returned
her vehicle, explaining that it was standard policy for officers to return any
equipment and for any specialized clearances to be made inactive following a
transfer out of a specialized unit. Included in the record is an email memorializing
this conversation in which Captain Deeba summarized his request, stating, “Please
ensure the FBI vehicle we spoke about that has not yet been turn [sic] in is returned
2
The Department’s policy states that only the “Chief of Police,” aka the Police
Commissioner, has the authority to make personnel changes. However, based on
Sergeant Muldrow’s version of the facts and for the sake of simplicity, we refer to
Captain Deeba as having made these changes, recognizing that, pursuant to the
policy, he had to obtain approval from Interim Commissioner O’Toole. See R. Doc.
57, at 3 (“Capt. Deeba requested permission from Comm’r O’Toole to make
personnel changes soon after taking control.”); see also McGowen, Hurst, Clark &
Smith, P.C. v. Com. Bank, 11 F.4th 702, 710 (8th Cir. 2021) (viewing facts in light
most favorable to nonmoving party).
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to your office and please advise me once this is completed.” In that email, he also
explained that this was the Department’s standard practice, stating,
Each time a [sic] officer is transferred from one unit to another, any/all
equipment, vehicles, and access and clearance are turned in and such
things as clearances are made inactive. They are not allowed to work
further, start new cases or what not, to include to work [sic] any
overtime compensation, with any State/Federal agencies; there are no
exceptions.3
Captain Deeba also contacted Sergeant Muldrow, reminding her to return the
FBI-issued vehicle, and Sergeant Muldrow’s Fifth District supervisor, letting the
supervisor know that Sergeant Muldrow had not yet returned the vehicle. Sergeant
Muldrow then returned the vehicle and her FBI badge, and the FBI revoked her TFO
status.
On June 22, 2017, Sergeant Muldrow filed a discrimination charge with the
Missouri Commission on Human Rights (Commission), alleging that the City of St.
Louis and Captain Deeba had discriminated against her, and was issued a right to
sue letter. Around this time, Sergeant Muldrow began requesting a transfer from the
Fifth District. Captain Coonce made informal requests for Sergeant Muldrow to be
3
Below, Sergeant Muldrow argued that the email was an inaccurate
representation of Captain Deeba’s conversation with Agent Lynch and attempted to
introduce portions of her own deposition testimony in which she relayed statements
made by Agent Lynch regarding Agent Lynch’s conversation with Captain Deeba.
However, the district court found that this deposition testimony constituted
inadmissible hearsay evidence. See R. Doc. 57, at 6 n.6. On appeal, Sergeant
Muldrow again argues that a genuine dispute of material fact exists as to the contents
of Captain Deeba’s conversation with Agent Lynch. However, we need not consider
this argument (or whether Sergeant Muldrow’s deposition testimony constitutes
inadmissible hearsay evidence) because, as discussed infra Section II.A, Sergeant
Muldrow relies on an unavailable “cat’s paw” theory of liability when arguing that
the FBI’s revocation of her TFO privileges constituted an adverse employment
action. Therefore, our iteration of the facts includes only that which the district court
found admissible (i.e., Captain Deeba’s email to Agent Lynch).
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transferred to the Second District to act as her administrative aide. However, Captain
Coonce never made any formal request in writing. On July 5, Sergeant Muldrow
requested a transfer to the Second District via PeopleSoft, the Department’s software
management system; in her deposition, she testified that upon her transfer to the
Second District, she would have been assigned as Captain Coonce’s administrative
aide. Then, on July 26, Sergeant Muldrow applied for a position as a detective
sergeant in the Second District. Finally, on August 3, Sergeant Muldrow applied for
a sergeant investigator position in the Internal Affairs Division. Applicants for the
sergeant investigator position were instructed to reapply when the position reposted
because, due to an officer shortage, the sergeant investigator positions would not be
filled until later in the year. On October 27, Sergeant Muldrow reapplied. Then, on
February 5, 2018, while her application for the sergeant investigator position was
still pending, she was transferred back into the Intelligence Division and her TFO
privileges were reinstated. Following this transfer, Sergeant Muldrow withdrew her
application for a sergeant investigator position.4
Sergeant Muldrow filed this action in Missouri state court, alleging: gender
discrimination in violation of Title VII against the City of St. Louis; retaliation for
reporting acts of discrimination in violation of Title VII against the City of St. Louis;
gender discrimination in violation of the Missouri Human Rights Act against the
City of St. Louis and Captain Deeba; and retaliation for reporting acts of
discrimination in violation of the Missouri Human Rights Act against the City of St.
Louis and Captain Deeba. The City of St. Louis and Captain Deeba removed the
case to federal court and filed a motion for summary judgment on all four claims.
The district court granted the motion as to Sergeant Muldrow’s Title VII gender
discrimination and retaliation claims against the City of St. Louis and declined to
exercise supplemental jurisdiction over her state law claims against the City of St.
Louis and Captain Deeba, dismissing those claims without prejudice. Sergeant
Muldrow now appeals only the district court’s grant of summary judgment in favor
4
Upon Sergeant Muldrow’s transfer back to the Intelligence Division, her
PeopleSoft request to transfer to the Second District (to act as Captain Coonce’s
administrative aide) was also still pending.
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of the City of St. Louis on her Title VII claims and makes no mention of the district
court’s dismissal of her state law claims.
II.
We review the district court’s grant of summary judgment de novo and view
the facts in the light most favorable to Sergeant Muldrow, the non-moving party.
See McGowen, Hurst, Clark & Smith, P.C., 11 F.4th at 710. “Summary judgment
is warranted ‘if the movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.’” De Rossitte v.
Correct Care Sols., LLC, 22 F.4th 796, 802 (8th Cir. 2022) (quoting Fed. R. Civ. P.
56(a)). “Where the record taken as a whole could not lead a rational trier of fact to
find for the nonmoving party, there is no genuine issue for trial.” Torgerson v. City
of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc) (quoting Ricci v.
DeStefano, 557 U.S. 557, 586 (2009)).
A.
Title VII dictates that “it is ‘unlawful . . . for an employer to fail or refuse to
hire or to discharge any individual, or otherwise to discriminate against any
individual with respect to his compensation, terms, conditions, or privileges of
employment, because of such individual’s race, color, religion, sex, or national
origin.’” Bostock v. Clayton Cnty., 140 S.Ct. 1731, 1738 (2020) (alteration in
original) (quoting 42 U.S.C. § 2000e-2(a)(1)). Where the employee relies on indirect
evidence of discrimination to establish her prima facie case, we apply the McDonnell
Douglas5 framework. See Bunch v. Univ. of Ark. Bd. of Trs., 863 F.3d 1062, 1068
(8th Cir. 2017); see also Turner v. Gonzales, 421 F.3d 688, 694 (8th Cir. 2005)
(explaining that a “claim may survive a motion for summary judgment by creating
an inference of unlawful discrimination through the familiar McDonnell Douglas
three-step burden-shifting analysis”). To establish a prima facie case of gender
5
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
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discrimination, the plaintiff-employee must show that she was a member of a
protected class, she was qualified to perform the job, she experienced an adverse
employment action, and this treatment was different from that of similarly situated
males. Turner, 421 F.3d at 694. If the employee sets forth a prima facie
discrimination case, the burden shifts to the defendant-employer to “provide a
‘legitimate, non-discriminatory justification for its adverse employment action.’”
Bunch, 863 F.3d at 1068 (citation omitted). Then, if the employer proffers a
legitimate justification, it becomes the employee’s burden to demonstrate that the
employer’s proffered justification is pretextual. Id. The district court found that
Sergeant Muldrow could not show that she experienced an adverse employment
action, and therefore, summary judgment was appropriate because she failed to
establish a prima facie case. We agree.
“An adverse employment action is a tangible change in working conditions
that produces a material employment disadvantage.” Clegg v. Ark. Dep’t of Corr.,
496 F.3d 922, 926 (8th Cir. 2007) (citation omitted); see also Jackman v. Fifth Jud.
Dist. Dep’t of Corr. Servs., 728 F.3d 800, 804 (8th Cir. 2013) (characterizing
“termination, cuts in pay or benefits, and changes that affect an employee’s future
career prospects” as adverse employment actions). “[M]inor changes in duties or
working conditions, even unpalatable or unwelcome ones, which cause no materially
significant disadvantage, do not rise to the level of an adverse employment action.”
Jackman, 728 F.3d at 804; see also Ledergerber v. Stangler, 122 F.3d 1142, 1144
(8th Cir. 1997) (“‘[A] transfer that does not involve a demotion in form or substance,
cannot rise to the level of a materially adverse employment action.’ A transfer
involving only minor changes in working conditions and no reduction in pay or
benefits will not constitute an adverse employment action, ‘[o]therwise every trivial
personnel action that an irritable . . . employee did not like would form the basis of
a discrimination suit.’” (second and third alterations in original) (citations omitted));
cf. Turner, 421 F.3d at 697 (“We are not persuaded that the normal inconveniences
associated with any transfer, such as establishing one’s professional connections in
a new community, are sufficient, without more, to demonstrate a significant change
in working conditions.”).
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In Sergeant Muldrow’s view, her transfer from the Intelligence Division to
the Fifth District constituted an adverse employment action because her Fifth
District work was more administrative and less prestigious than that of the
Intelligence Division, meaning that it was more akin to “the basic entry level [work]
of being a police officer or sergeant.” The only evidence Sergeant Muldrow offers
in support of her argument is her own deposition testimony, and like the district
court, we do not find this persuasive such that it is capable of defeating summary
judgment. Cf. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986) (“If
the evidence is merely colorable, or is not significantly probative, summary
judgment may be granted.” (citations omitted)). Further, in that testimony, she
explained that upon her transfer, her pay and rank remained the same, she was given
a supervisory role, and she was responsible for investigating violent crimes, such as
homicides and robberies. She admitted that her time in the Fifth District, which
lasted only approximately eight months, did not harm her future career prospects.
Additionally, although Sergeant Muldrow lost the opportunity to receive $17,500
annually for FBI-related overtime work, she was still eligible for overtime pay while
assigned to the Fifth District and simply chose not to take advantage of those
opportunities.
This Court has repeatedly found that an employee’s reassignment, absent
proof of harm resulting from that reassignment, is insufficient to constitute an
adverse employment action. See, e.g., Holland v. Sam’s Club, 487 F.3d 641, 645
(8th Cir. 2007) (finding that a “transfer from operating a forklift in the warehouse to
being a stocker in electronics” was not an adverse employment action because it
“involved no change in pay or benefits and only minor changes in . . . working
conditions”); Zhuang v. Datacard Corp., 414 F.3d 849, 854 (8th Cir. 2005) (finding
that a transfer from a “developer position” to a “tester position” was not an adverse
employment action because the employee’s “pay and benefits remained the same”
and she simply preferred “one position over the other”). Sergeant Muldrow’s
transfer to the Fifth District did not result in a diminution to her title, salary, or
benefits. She offers no evidence that she suffered a significant change in working
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conditions or responsibilities and, at most, expresses a mere preference for one
position over the other. See Jackman, 728 F.3d at 804. In fact, she admitted as much
in her deposition, explaining that she did not like her assignment in the Fifth District
as much as she liked her assignment in the Intelligence Division. This is insufficient
to show that her transfer constituted an adverse employment action. See, e.g.,
Ledergerber, 122 F.3d at 1144.
Sergeant Muldrow also cites the revocation of her TFO status as an adverse
employment action. The record shows, and the parties do not dispute, that the FBI
had the sole authority to revoke Sergeant Muldrow’s TFO status. In order to hold
the City of St. Louis responsible for this revocation, Sergeant Muldrow relies on a
“cat’s paw” theory of liability. “[C]at’s-paw refers to a situation in which a biased
subordinate, who lacks decisionmaking power, uses the formal decisionmaker as a
dupe in a deliberate scheme to trigger a discriminatory employment action.” Pribyl
v. Cnty. of Wright, 964 F.3d 793, 797 (8th Cir. 2020) (alteration in original) (citation
omitted). Under a cat’s paw theory, “an employer may be vicariously liable for an
adverse employment action if one of its agents—other than the ultimate decision
maker—is motivated by discriminatory animus and intentionally and proximately
causes the action.” Bennett v. Riceland Foods, Inc., 721 F.3d 546, 551 (8th Cir.
2013). Sergeant Muldrow alleges that Captain Deeba, motivated by his
discriminatory animus against her, caused the FBI to revoke her TFO status by
contacting both her Fifth District supervisor and Agent Lynch, and thus, the adverse
employment action is attributable to the City of St. Louis.
Sergeant Muldrow sets forth only two cases in support of her argument. In
both cases, the person with the alleged discriminatory animus, the decisionmaker,
and the defendant sued for discrimination were part of the same entity. See
Torgerson, 643 F.3d at 1044-45 (plaintiffs sued city for city council’s discriminatory
hiring practices that were allegedly influenced by city council-appointed
commissioner); Richardson v. Sugg, 448 F.3d 1046, 1060 (8th Cir. 2006) (plaintiff
sued university’s chancellor and president for university’s discriminatory
termination decision that was allegedly influenced by the university’s athletic
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director). Sergeant Muldrow does not direct us to, nor have we found, any case
supporting her assertion that the cat’s paw theory is applicable in scenarios like the
one currently before us where the alleged decision maker (here, the FBI) was not a
part of the organization sued for discrimination (here, the City of St. Louis). We
therefore decline to hold the City of St. Louis responsible for the FBI’s revocation
of Sergeant Muldrow’s TFO status.
Finally, Sergeant Muldrow argues that the City of St. Louis’s failure to
transfer her from the Fifth District to the Second District to work as Captain
Coonce’s administrative aide constituted an adverse employment action. “Denial of
a sought-after transfer may constitute an adverse employment action if the transfer
would result in a change in pay, rank, or material working conditions.” Bonenberger
v. St. Louis Metro. Police Dep’t, 810 F.3d 1103, 1107 (8th Cir. 2016) (emphasis
omitted). When determining if denial of a sought-after transfer constitutes an
adverse employment action, we look to the same factors that we did when deciding
whether Sergeant Muldrow’s involuntary transfer to the Fifth District constituted an
adverse employment action, such as whether the sought-after transfer would have
resulted in a change in supervisory duties, prestige, schedule and hours, or promotion
potential. See id. at 1108.
Sergeant Muldrow does not demonstrate how the sought-after transfer would
have resulted in a material, beneficial change to her employment, and absent such
showing, we find that the City of St. Louis’s failure to transfer her was not an adverse
employment action. See id. Sergeant Muldrow analogizes her case to Bonenberger,
but we find Bonenberger to be factually distinct. There, the plaintiff-employee, a
white male officer for the Department, sought a position as the Assistant Academy
Director of the St. Louis Police Academy. See id. at 1105. He was expressly told
by his superiors that he would not be awarded the position because it would be given
to a black female officer, and at trial, he presented evidence that the position
“involved significant supervisory duties” and “offered more ‘contact with command
rank officers.’” See id. at 1105, 1108. Notably, Officer Bonenberger also presented
historical evidence showing that “sergeants who held the position of Assistant
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Academy Director were ‘significantly’ more likely to be promoted to Lieutenant.”
See id. at 1108.
Here, Sergeant Muldrow does not offer such persuasive evidence. Instead,
she offers only her own and Captain Coonce’s deposition testimony, in which
Captain Coonce explained that the administrative aide position was more “high
profile” than Sergeant Muldrow’s position in the Fifth District and would have given
Sergeant Muldrow the “inside track” as to what was “going on.” Captain Coonce
also testified that most administrative aides received things like laptops or iPads to
assist them with their work. Sergeant Muldrow argues that the City of St. Louis’s
denial of her transfer “caused her to miss out on employment opportunities,” and, in
her deposition, provided testimony similar to that of Captain Coonce. This
testimony does not explain how or why Sergeant Muldrow was harmed by not being
awarded the administrative aide position—only that, in their view, she would have
been seen as having a higher profile, been privy to more information, and perhaps
been given a laptop or iPad.
Further, as a practical matter, Captain Coonce only made two informal
requests, and although Sergeant Muldrow made a request to transfer to the Second
District, this request remained pending at the time of her transfer back to the
Intelligence Division. So, there is, in fact, not a denial for us to review. Moreover,
in her deposition testimony, Sergeant Muldrow admitted that the administrative aide
position would not have resulted in an increase in her pay or rank and as mentioned,
that her time in the Fifth District did not harm her career prospects. In light of this,
a reasonable trier of fact could not find that Sergeant Muldrow suffered an adverse
employment action. See Torgerson, 643 F.3d at 1042.
Therefore, concluding that her transfer to the Fifth District, the revocation of
her TFO status, and the denial of her sought-after transfer to the Second District did
not constitute adverse employment actions for which the City of St. Louis is
responsible, we find that Sergeant Muldrow failed to set forth a prima facie case of
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gender discrimination and affirm the district court’s grant of summary judgment on
this claim.
B.
In addition to Title VII’s protection against discrimination on the basis of
“race, color, religion, sex, or national origin,” see Bostock, 140 S. Ct. at 1738
(citation omitted), “[a] separate section of the [Civil Rights] Act—its antiretaliation
provision—prohibits an employer from ‘discriminat[ing] against’ an employee or
job applicant because that individual ‘opposed any practice’ made unlawful by Title
VII or ‘made a charge, testified, assisted, or participated in’ a Title VII proceeding
or investigation.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 56
(2006) (second alteration in original) (citing 42 U.S.C. § 2000e-3(a)). To establish
a prima facie case of retaliation, an employee-plaintiff must show that “(1) she
engaged in protected conduct, (2) she suffered a materially adverse employment act,
and (3) the adverse act was causally linked to the protected conduct.” See Bunch,
863 F.3d at 1069 (citation omitted). As with her gender discrimination claim,
Sergeant Muldrow relies on indirect evidence to establish a prima facie case of
retaliation, so we again apply the McDonnell Douglas burden-shifting standard. See
Gibson v. Geithner, 776 F.3d 536, 540 (8th Cir. 2015). If the employee establishes
a prima facie case, “the burden shifts to the employer to articulate a legitimate, non-
retaliatory reason for its action.” Pye v. Nu Aire, Inc., 641 F.3d 1011, 1021 (8th Cir.
2011) (citation omitted). If the employer satisfies its burden, “the burden then shifts
back to the employee to put forth evidence of pretext.” Id.In Burlington Northern, the Supreme Court characterized the level of
harmfulness that an employer’s adverse action(s) must reach to fall within the
antiretaliation provision’s phrase “discriminate against,” 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.”’” 548
U.S. at 68 (citation omitted); see also Littleton v. Pilot Travel Ctrs., LLC, 568 F.3d
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641, 644 (8th Cir. 2009) (“Our post-[Burlington Northern] decisions have
consistently held that, to be materially adverse, retaliation cannot be trivial; it must
produce some ‘injury or harm.’” (citation omitted)). Pursuant to Burlington
Northern, we are directed to engage in a fact-intensive analysis, evaluating an
employee’s suffered harm from the objective standard of a reasonable employee, as
we do in many other Title VII contexts. See 548 U.S. at 69 (“We phrase the standard
in general terms because the significance of any given act of retaliation will often
depend upon the particular circumstances. Context matters.”). When determining
if an employee has suffered a materially adverse employment action, “[w]e will
consider each action in turn and thereafter evaluate their cumulative force.” See
Devin v. Schwan’s Home Serv., Inc., 491 F.3d 778, 785 (8th Cir. 2007), abrogated
on other grounds by Torgerson, 643 F.3d at 1043.
Sergeant Muldrow alleges that the City of St. Louis retaliated against her for
filing a discrimination charge with the Commission, and in support, she cites three
allegedly materially adverse actions. First, the City of St. Louis “ignored” her July
5 request to transfer to the Second District. She asserts that this was a materially
adverse action “because there were more Sergeants assigned to District Five (5) then
[sic] were necessary to fill shifts.” Second, the City of St. Louis did not approve her
July 26 application for a Second District detective sergeant position that was more
prestigious than her position in the Fifth District and “would have exposed her to
command staff on a regular basis, which would have been helpful in any future
promotional process.” Finally, the City of St. Louis “refus[ed]” to award her a
position in the Internal Affairs Division as a sergeant investigator, a position that
involved “sensitive investigations” and “more responsibilities and duties”; would
have “improved her career prospects”; and offered her a traditional Monday through
Friday schedule.
However, we find that these actions, either individually or cumulatively, did
not amount to a materially adverse action. Sergeant Muldrow argues that these were
materially adverse employment actions because she did not receive transfers that she
wanted. However, an employer is not tethered to every whim of its employees. Cf.
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Burlington N., 548 U.S. at 68 (only prohibiting “material adversity” and specifically
“separat[ing] significant from trivial harms”); see also Marrero v. Goya of P.R., Inc.,
304 F.3d 7, 23 (1st Cir. 2002) (“Work places are rarely idyllic retreats, and the mere
fact that an employee is displeased by an employer’s act or omission does not elevate
that act or omission to the level of a materially adverse employment action.” (citation
omitted)). The fact that there were fewer sergeants assigned to the Second District
than the Fifth District tells us nothing about why the failure to transfer Sergeant
Muldrow into the Second District constituted a materially adverse action. And,
although she argues that her career was detrimentally impacted when she was not
given the Second District detective sergeant position or the Internal Affairs Division
sergeant investigator position, we once again find that her own deposition testimony
undercuts her argument: she testified that her time in the Fifth District did not result
in long-term harm to her career. Further, although Sergeant Muldrow alleges that,
as a sergeant investigator with the Internal Affairs Division, she would have worked
on more sensitive investigations, she offers no explanation or helpful comparison in
support of this allegation to shed light on what type of investigations she would have
been working on and how those investigations would have been different from the
violent crime investigations she was tasked with in the Fifth District. Finally,
although Sergeant Muldrow contends that she would have benefitted from a
traditional schedule in the Internal Affairs Division, in Recio v. Creighton
University, we explained that “[t]he mere fact” that an employee was
“disallowed . . . from maintaining her preferred . . . schedule, without any indication
that [she] suffered a material disadvantage as a result of the action, does not ‘meet
the significant harm standard set forth in Burlington Northern.’” See 521 F.3d 934,
940 (8th Cir. 2008) (citation omitted).
Ultimately, Sergeant Muldrow is unable to point to any “injury or harm” that
resulted from the City of St. Louis’s failure to transfer her from the Fifth District.
See Littleton, 568 F.3d at 644 (citation omitted). Absent such a showing, we agree
with the district court that Sergeant Muldrow has not suffered a material adverse
action sufficient to dissuade a reasonable employee from making a claim of
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discrimination and therefore, has not established a prima facie case of retaliation.
Summary judgment is appropriate.6
III.
For the foregoing reasons, we affirm the district court’s grant of summary
judgment.
______________________________
6
The United States Department of Justice (DOJ) submitted an amicus curiae
brief featuring three pages of argument, none of which pertains to this case. Instead,
the DOJ used those three pages to make a general argument that “transferring an
employee on the basis of sex is actionable under Section 703(a)(1) of Title VII of
the Civil Rights Act . . . and that no further showing of a ‘material’ harm or
‘significant’ change in employment status is required for the transfer to be
actionable.” The DOJ then directed us to briefs that it has previously written—one
is a brief in opposition to a petition for a writ of certiorari, which was denied, and
the other is an amicus brief in support of a petition for a writ of certiorari, which was
voluntarily dismissed—and inserted those briefs in its amicus brief. Not only is it
unhelpful to submit an amicus brief wholly unrelated to the case currently before
this Court, but the DOJ writes in support of a position clearly contravened by the
Supreme Court’s and this Court’s precedent. See, e.g., Thompson v. N. Am.
Stainless, LP, 562 U.S. 170, 174 (2011) (applying Burlington Northern’s standard
and asking whether the employer action “well might have dissuaded a reasonable
worker from making or supporting a charge of discrimination”); AuBuchon v.
Geithner, 743 F.3d 638, 641-42 (8th Cir. 2014) (same); Hill v. City of Pine Bluff,
696 F.3d 709, 715 (8th Cir. 2012) (same). Further, an amicus filing must include
“the reason why an amicus brief is desirable and why the matters asserted are
relevant to the disposition of the case,” and the cover must include an indication of
“whether the brief supports affirmance or reversal.” Fed. R. App. P. 29(a)(3)(B),
(4). Here, the DOJ states only that it “has a substantial interest in the proper
interpretation of Title VII of the Civil Rights Act” and expressly disclaims having
any “position on the merits of [Sergeant Muldrow’s] claim or on any other issues
presented in this appeal.” Further, the brief’s cover notes that the brief is “in support
of neither party.” For that reason, although we have permitted the DOJ to submit a
brief, we expressly state that we do not find it helpful.
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