Case: 14-30788         Document: 00513329552         Page: 1     Date Filed: 01/05/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                        No. 14-30788                         United States Court of Appeals
                                                                                      Fifth Circuit

                                                                                    FILED
LILLIE D. WHEAT,                                                              January 5, 2016
                                                                               Lyle W. Cayce
                Plaintiff - Appellant                                               Clerk

v.

FLORIDA PARISH JUVENILE JUSTICE COMMISSION,

                Defendant - Appellee




                     Appeal from the United States District Court
                        for the Eastern District of Louisiana


Before JOLLY and DENNIS, Circuit Judges, and REEVES,* District Judge.
E. GRADY JOLLY, Circuit Judge:
      Lillie Wheat, a former Juvenile Detention Staff Officer (“JDS Officer”)
with the Florida Parishes Juvenile Justice Commission (“the Commission”),
appeals from the district court’s summary-judgment dismissal of her
employment-discrimination suit.             We AFFIRM in part, and VACATE and
REMAND in part.
                                               I.
      In 2000, Wheat began her employment with the Commission, which
operates the Florida Parishes Juvenile Detention Center (“FPJDC”) in the



      *   District Judge of the Southern District of Mississippi, sitting by designation.
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                                 No. 14-30788
Eastern District of Louisiana. Wheat was eventually promoted to JDS officer,
then to Shift Supervisor in 2005, and ultimately to Assistant Director of
Female Services in 2008. Additionally, she had received positive reviews and
consistent pay raises. In January 2005, however, Wheat was disciplined after
she used excessive force against a juvenile inmate. By failing to defuse a
hostile situation with the juvenile, or alert other JDS officers, Wheat had
allowed the juvenile to get within her reach. Wheat then physically forced the
juvenile down to the ground and held her there, violating FPJDC’s guidelines.
      In 2009, Wheat took leave under the Family and Medical Leave Act
(“FMLA”), 29 U.S.C. § 2601 et seq., to undergo surgery. The Commission
terminated her employment for failing to return to work after her FMLA leave
had expired. She filed suit under the FMLA. The suit was settled, and her
employment at the Commission was reinstated on March 8, 2011. At the time,
her previous position as Assistant Director of Female Services was not
available. Consequently, she was hired at a lower ranking position as a JDS
Officer. However, she was paid the same salary as her previous supervisory
position. After being rehired, supervisory positions became available and, on
two separate occasions, she was offered advancement to a supervisory position.
Wheat turned down both offers because “she did not want to go back on salary
and assume additional responsibility,” and “she would lose her right to
overtime.”
      On November 23, 2011, Wheat filed an “Unusual Occurrence Report”
concerning a twelve-year-old female inmate’s alleged inappropriate sexual
advances toward Wheat.        Wheat’s supervisors met with her on several
occasions to discuss the proper methods for handling such advances. Wheat
was dissatisfied with the disciplinary limitations which these models imposed.
She requested that the juvenile be placed in administrative segregation. Her
requests were denied.
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                                No. 14-30788
      On January 3, 2012, Wheat had another physical episode with a female
inmate. Responding to the juvenile’s noncompliant behavior, Wheat applied a
“mandibular angle pressure point” hold to the juvenile. Wheat was ordered to
cease, and her supervisor had to restrain her. Wheat then had to be restrained
a second time. Wheat followed the same juvenile to her cell, and although
provoked by the juvenile, further attempted to assault her. Wheat threatened
to “whip that bitch’s ass.” Wheat was placed on leave, without pay, for these
two eruptions and was shortly thereafter discharged, on January 19, 2012.
      After exhausting her remedies with the Equal Employment Opportunity
Commission (EEOC), see 42 U.S.C. § 2000e-5, Wheat filed this suit. In her
complaint, she alleged that she was discharged in retaliation for having
asserted her rights under the FMLA, and under Title VII (for having
complained about the juvenile’s sexual advances).        She also alleged ten
additional retaliatory acts by the Commission, as well as sexual harassment
by the juvenile resident. The district court granted summary judgment to the
Commission, dismissing Wheat’s complaint.         Wheat v. Florida Parishes
Juvenile Justice Comm'n, No. 12-2989, 

(E.D. La. May 22,
2014).
                                      II.
      We review a grant of summary judgment de novo, applying the same
standard as did the district court. E.g., Cuellar v. Keppel Amfels, L.L.C., 

, 345 (5th Cir. 2013). Under that standard, summary judgment is
appropriate “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.” Fed.
R. Civ. P. 56(a).
                                     III.
      It is important to keep in mind that the FPJDC facility is a correctional
confinement, primarily for youths who are emotionally challenged, exhibit
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                                  No. 14-30788
drug and alcohol problems, mental problems, and suicidal tendencies, which
requires supervisors and employees with specialized training and self-control.
      The FMLA and Title VII prohibit an employer from discriminating
against employees for asserting rights protected under those acts. See 29
U.S.C. § 2615 (forbidding “discriminat[ion] against any individual because
such individual,” among other things, “has filed any charge . . . under or related
to” the FMLA); 42 U.S.C. § 2000e-3(a) (forbidding “discriminat[ion] 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).
      Wheat does not connect any of the alleged acts of retaliation to a specific
protected right, that is, whether the retaliation was under Title VII and/or the
FMLA. Retaliation claims under both Title VII and the FMLA, however, are
analyzed under the McDonnell Douglas burden-shifting framework. Chaffin
v. John H. Carter Co., 

, 319 (5th Cir. 1999); see also Hunt v.
Rapides Healthcare Sys., LLC, 

, 768 (5th Cir. 2001).            That
framework requires the employee first to set out a prima facie case of
retaliation, which she may do by establishing that: (1) she engaged in protected
activity; (2) the employer took a materially adverse action against her; and (3)
a causal link exists between her protected activity and the adverse action. See,
e.g., Davis v. Fort Bend Cnty., 

, 489–90 (5th Cir. 2014) (Title VII),
cert. denied, 

(2015); Ion v. Chevron USA, Inc., 

,
390 (5th Cir. 2013) (FMLA). The Supreme Court, however, in Univ. of Texas
Sw. Med. Ctr. v. Nassar, 

(2013), recently held that to satisfy
the “causal link” requirement of a Title VII retaliation claim, the employee
must provide substantial evidence that “but for” exercising protected rights,
she would not have been discharged. See 

(“Title VII retaliation
claims must be proved according to traditional principles of but-for causation .
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                                     No. 14-30788
. . [t]his requires proof that the unlawful retaliation would not have occurred
in the absence of the alleged wrongful action or actions of the employer.”).
Neither this Court, nor the Supreme Court, has decided whether the
heightened “but for” causation standard required for Title VII retaliation
claims applies with equal force to FMLA retaliation claims. See Harrelson v.
Lufkin Indus., Inc., No. 14-41458, 

, at *3 (5th Cir. June 29,
2015) (“We have yet to decide whether Nassar applies to the FMLA context.”);
Castay v. Ochsner Clinic Found., 

, 356 (5th Cir. 2015)
(“Because we concluded that the plaintiff's claim in that case would fail under
either [Title VII or FMLA] standard, we did not decide whether the ‘but for’
causation standard should apply in FMLA retaliation cases.”); 

(“We emphasize that we need not, and do not, decide whether Nassar 's
analytical approach applies to FMLA-retaliation claims and, if so, whether it
requires a plaintiff to prove but-for causation.”).           Even so, however, this
distinction is largely immaterial because the claims addressed below—with the
exception of the termination and harassment claims—turn on the “materially
adverse action” prong of McDonnell Douglas.
                                            A.
      Wheat alleges that, before her termination, the Commission retaliated
against her on several occasions. Reasoning that only “ultimate employment
decisions” can constitute actionable retaliation, the district court held that
Wheat had failed to make out a prima-facie case. Wheat, 

at
*5–8. On appeal, the parties, as well as the EEOC as amicus, argue that the
district court erred by applying our pre-Burlington Northern & Santa Fe
Railway v. White, 

(2006), standard to Wheat’s claims. 1


      1 Before the Supreme Court’s decision in Burlington Northern & Santa Fe Railway v.
White, 

(2006), this Court held that only “‘ultimate employment decisions,’ such
as hiring, granting leave, discharging, promoting, and compensating, satisfy the ‘adverse
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                                       No. 14-30788
Nonetheless, the Commission argues that it is still entitled to summary
judgment because none of the alleged pre-termination actions rises to the level
of actionable retaliation under Burlington.              We turn, then, to determine
whether these retaliation claims survive summary judgment under current
law.
        We have examined these various retaliation claims and find that most
are unsupported by the record and are devoid of merit. We do find that three
of these claims merit further discussion: the assignment of “janitorial duties”
upon her rehiring; the denial of a 4% raise as indicated by her performance
evaluation; and the denial of her request to be transferred away from a
“difficult inmate.” 2
                                             1.
        First, Wheat alleges that an assignment of janitorial duties was a
retaliatory, materially adverse action. Such an allegation, however, must do
more than make conclusory allegations to create a cognizable issue of fact. See,
e.g., Navarro v. City of San Juan, No. 14-41410, 

, at *3 (5th
Cir. Aug. 27, 2015) (“The nonmovant's burden ‘is not satisfied with some
metaphysical doubt as to the material facts, by conclusory allegations, by
unsubstantiated assertions, or by only a scintilla of evidence.’”) (citation
omitted); 

(“A party cannot ‘defeat summary judgment



employment action’ element of a prima facie case of retaliation.” E.g., 

(emphasis omitted).
        2Wheat raises other issues on appeal including: being transferred to work with
females; being bitten by a female resident; being denied medical information about the
resident who bit her; being “denied support by [her] supervisors in difficult situations with”
residents; being sexually harassed by a female resident; being “denied support of on the scene
staff in physical confrontations with” residents; and being denied a timely performance
evaluation. After thorough review, it is clear that Wheat provides no record support for any
of these pre-termination “materially adverse action” allegations in connection with her
asserted Title VII and FMLA rights.

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                                  No. 14-30788
with conclusory allegations . . . .’”); Browning v. Sw. Research Inst., 288 F.
App'x 170, 173 (5th Cir. 2008) (“[T]he nonmoving party ‘must . . . set out specific
facts showing a genuine issue for trial.’ The nonmoving party, however, ‘cannot
satisfy this burden with conclusory allegations.’”) (citation omitted); Michalik
v. Hermann, 

, 262 (5th Cir. 2005) (“The plaintiff bears the burden
of negating the defense and cannot rest on conclusory allegations and
assertions but must demonstrate genuine issues of material fact . . . .”); Geter
v. Fortenberry, 

, 1553 (5th Cir. 1988) (“[C]omplaints containing
conclusory allegations, absent reference to material facts, will not survive
motions to dismiss.”).
      A bare-bones allegation that an assignment of janitorial duties is a
materially adverse action is only an unsupported conclusory claim. Such a
bare allegation fails to provide the contextual detail that is required for
materially adverse actions. In Burlington, 

, 69, the Supreme Court
made clear that context is critical. The Court observed that “[w]hether a
particular reassignment is materially adverse depends upon the circumstances
of the particular case.” 

Those circumstances are missing here.
Indeed, Burlington illustrated that merely changing an employee’s job title will
not suffice to constitute a materially adverse action without further detail. 

The Court reasoned that the record evidence indicated that the
plaintiff was reassigned to perform “only standard track laborer tasks,” “that
the track laborer duties were by all accounts more arduous and dirtier,” and
“that the forklift operator position required more qualifications, which is an
indication of prestige.” 

71 (emphasis added) (internal quotation
marks omitted).      “Based on this record,” the Court said, “a jury could
reasonably conclude that the reassignment of responsibilities would have been
materially adverse to a reasonable employee.” 

(emphasis added)
(internal quotation marks omitted). Here, there is no record evidence that
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                                   No. 14-30788
provides any description, whatsoever, of Wheat’s alleged temporary
assignment of janitorial duties.
      Furthermore, Wheat can find no succor in Wilson v. Monarch Paper Co.,

(5th Cir. 1991).       There, the employer had reassigned the
plaintiff—a former “executive manager”—to a position as “an entry level
warehouse supervisor with menial and demeaning duties.” 

We
upheld the jury’s finding that this conduct was “extreme and outrageous,”
pointing to record evidence regarding the plaintiff’s qualifications (he “had
been a long-time executive” with the employer and was “responsible for the
largest project in the company’s history,” which he completed “on time and
under budget”); the specific nature of the plaintiff’s duties as warehouse
supervisor (he “was frequently required to sweep the warehouse” and “was
reduced to cleaning up after the employees in the warehouse cafeteria after
their lunch hour”); and the extent to which his work time was occupied with
the menial tasks (“Wilson spent 75 percent of his time performing these
menial, janitorial duties.”). 

Wilson also had to perform all of
his janitorial duties under a sign that read “Wilson is old.” 

no
record here that provides any suggestion of Wheat’s duties, time spent, or the
humiliation, if any, that she suffered.
      Furthermore, nowhere in her complaint does Wheat allege why
assignment to janitorial duties was an act of retaliation or an adverse
employment action. Before the district court, she alleged “Wheat was initially
assigned to perform janitorial work and do intake. A few weeks later, Wheat
was assigned to Echo Mod which houses male juveniles. In late April, early
May, 2011, Wheat was notified by Donald Carter, Shift Supervisor, that she
was being re-assigned to the girls’ mod.” Plaintiff’s Statement of Uncontested
Fact, Doc. 40-1, ¶16.     This statement is the complete reference to her
assignment of janitorial duties that can be found in the record before the
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                                  No. 14-30788
district court.   Nothing more.   There is no indication that she raised the
slightest objection to this assignment. There is no indication of how much time
was spent doing these “janitorial duties” as opposed to doing “intake” work.
The district court was never told whether she was asked to perform unpleasant
“janitorial tasks” (e.g., cleaning bathrooms), “janitorial tasks” that were minor
in nature (e.g., changing lightbulbs, dusting a few desks, or simply cleaning up
her own desk), or, indeed, whether her tasks could reasonably be classified as
janitorial at all. Nor was the district court told what portion of Wheat’s work
day was devoted to “janitorial duties.”     Was it all of her workday (as in

), 75 percent of her workday (as in 

), less than 5 minutes per week, or any part of her workday at all?
Neither the district court nor we have the slightest idea.
      Moreover, the dissent says that on appeal “the Commission admits that
janitorial duties were not ‘regular’ duties of line officers.”        This alleged
statement was never made before the district court; nor was it ever made by
Wheat at any time. To be sure, the dissent mischaracterizes the Commission’s
brief in this respect. The Commission actually said:
      Moreover, Ms. Wheat has not offered any evidence that her being
      assigned such chores constituted different treatment from other
      JDS officers. Ms. Wheat offers no evidence that this short
      assignment of janitorial and intake duties was anything more than
      her supervisors finding work for her until regular JDS officer
      duties became available. This is a legitimate, non-retaliatory
      motivation. Applying the correct standard to these facts, it
      becomes apparent that this temporary assignment falls far short
      of being materially adverse to a reasonable employee in Ms.
      Wheat’s position.
Appellee’s Brief, p. 14–15. Properly read, the record does not exclude the
possibility that some “janitorial duties” were expected of JDS officers
generally—but especially those, like Wheat, who had just recently been hired
or reinstated.
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                                 No. 14-30788
      In sum, Wheat’s mere assignment of janitorial duties, without further
description or detail about what those duties actually were, does not state a
materially adverse action under Burlington or Wilson. In short, she has failed
to meet her burden of making a prima facie case of retaliation.
                                       2.
      Next, Wheat alleges that her performance evaluation was untimely and
that “[a]ccording to the evaluation, [she] should have received a 4% pay
increase.” Although Wheat’s performance evaluation form rated her Overall
Job Performance Rating as “Very Good”, the form clearly stated that she was
not authorized for a step increase. More importantly, at the conclusion of her
performance review, Wheat signed the findings of the review committee as
follows:
      I have read this evaluation and reviewed a copy of it. I understand
      that my signature does not constitute or imply my agreement,
      unless marked so. Should I disagree with this rating, I understand
      that I my [sic] appeal to the appropriate manager.
ROA.403 (emphasis added).
      Wheat also checked the box that read “I have reviewed and agree with
this rating.” 

not object to or appeal this evaluation. Further, the
record is silent as to why she did not elect to appeal. In short, Wheat produced
no evidence to show that the delay in her evaluation or the failure to grant her
4% step increase—accompanied by a right of appeal that she did not exercise—
constituted a materially adverse action.
      The dissent concludes that it “may be materially adverse when an
employee is effectively denied (or delayed by several months) a 4% raise
indicated by her performance evaluation.” (Emphasis added).           Thus, the
dissent, by the use of the word “may”, seems to acknowledge that Wheat has
failed to meet her burden of establishing her claim. Furthermore, the dissent
asserts that a disputed issue of material fact exists based on the possibility
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                                      No. 14-30788
that the Commission’s action “may be materially adverse when an employee is
effectively denied . . . a 4% raise indicated by her performance evaluation.”
(Emphasis added). Even so, as previously indicated, the dissent’s premise is
wrong on the record facts. This possibility is not enough to create a material
fact or issue of law that bars summary judgment, especially when the
underlying premise of such “possibility” appears to be false.
      Therefore, Wheat has failed to meet her burden of making a prima facie
case of retaliation for this claim.
                                           3.
      Next, Wheat alleges that the denial of a transfer request was a
retaliatory, materially adverse action.         Specifically, Wheat requested the
transfer because she objected to working around one particularly disruptive
juvenile. As with the janitorial duties, Wheat has presented no evidence that
the denial of the reassignment made her job “objectively” worse.                  See

. It did not “affect[] her job title, grade, hours, salary,
or benefits,” nor is there any indication that working with females resulted in
a “diminution in prestige or change in standing among her co-workers.” See
Stewart v. Miss. Transp. Comm’n, 

, 332 (5th Cir. 2009).
Additionally, mere denial of a reassignment to a purely lateral position (“no
reduction in pay and no more than a minor change in working conditions”), is
typically not a materially adverse action. Burger v. Cent. Apartment Mgmt.,
Inc., 

, 879 (5th Cir. 1999). Furthermore, as the Commission points
out, Wheat had worked, apparently without complaint, in the female section
for eight years.
      Therefore, under these circumstances, the denial of a reassignment was
not, as a matter of law, an adverse action. Accordingly, Wheat has not met her
burden to establish a prima facie case of retaliation for this claim.


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                                 No. 14-30788
                                 *     *       *
      Although the district court erroneously evaluated the Commission’s
allegedly retaliatory actions using the now-abrogated “ultimate employment
decisions” standard, Wheat’s pre-termination retaliation claims fail even
under current law. Thus, we affirm the district court’s grant of summary
judgment to the Commission with respect to these retaliation claims.
                                       B.
      Finally, we turn to Wheat’s retaliatory termination claim. It is clear that
Wheat’s discharge constitutes a “materially adverse action.” See, e.g., Royal v.
CCC&R Tres Arboles, L.L.C., 

, 400 (5th Cir. 2013) (“It is clear that
an adverse employment action occurred here—Royal was fired.”). We thus
turn to Wheat’s burden to show a “causal link” between her discharge and
exercising her protected rights. Again, it unclear whether the “causal link”
requirement for FMLA retaliation claims involves the same “but for” analysis
required for Title VII retaliation claims. See Nassar, 

. It is
clear, however, that the plaintiff “may avoid summary judgment on ‘but for’
causation by demonstrating ‘a conflict in substantial evidence on this ultimate
issue.’” Hernandez v. Yellow Transp., Inc., 

, 660 (5th Cir. 2012)
(“Evidence is ‘substantial’ if it is of such quality and weight that reasonable
and fair-minded men in the exercise of impartial judgment might reach
different conclusions.”) (citation omitted).   As we shall see, however, here
which standard we apply does not affect the outcome because Wheat’s claim
survives the heightened showing of “but for” causation.           Then, when the
plaintiff sets out a prima facie case under McDonnell Douglas, “the burden
shifts to the employer to state a legitimate, non-retaliatory reason for” the
adverse action. 

(internal quotation marks omitted).
      Initially, however, Wheat, as the plaintiff, bears the burden to provide
substantial evidence for this claim.    Wheat must illustrate that “but for”
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                                No. 14-30788
exercising her Title VII and FMLA protected rights, she would not have been
discharged. Wheat effectively acknowledges the conduct with which she was
charged, but contends that the actual cause of her termination was that she
asserted her protected rights. She points to other specific instances in which
she, and other employees as well, were physically excessive toward juveniles
but not discharged.
      In this connection, the record shows that Wheat herself was previously
improperly excessive in dealing with a juvenile in 2005. At that time she had
never asserted Title VII or FMLA rights. Responding to this 2005 incident,
the FPJDC’s Operations Manager “recommended three days suspension
without pay and six months [of] probation.” Affidavit of Steven Happel, at 4,
¶34. The Executive Director, however, “[r]ecognizing Ms. Wheat’s ‘exemplary
job performance’ . . . reduced the disciplinary action to a written reprimand”
and required Wheat to “undergo additional training.” 

But with
respect to the 2012 incident, after asserting her Title VII and FMLA rights,
the Commission terminated Wheat’s employment because, it said, “No JDS
officer had ever physically attacked a youth resident before Ms. Wheat did,
and, no JDS officer was allowed to remain in the Commission's employ after
any such attack.” Defendant’s Amended Statement of Uncontested Fact, Doc.
39, ¶72. Wheat rebutted this assertion by offering evidence of other employees
who were violent towards juvenile residents, but were not discharged by the
Commission. See Plaintiff’s Statement of Uncontested Fact, Doc. 40-1, ¶72. It
was only after Wheat brought these allegations of the Commission’s disparate
treatment of its employees to the attention of the district court, that the
Commission modified its reasons for termination. In its revised explanation
for her discharge, the Commission asserted that Wheat’s second “violent attack
on a youth resident . . . gave the Commission compelling grounds to fire her to
protect the health and safety of the youth residents.” Defendant’s Second
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                                       No. 14-30788
Reply Memo, Doc. 46, at 9.            After providing its revised explanation, the
Commission did not make any reference, corrective or otherwise, to its original
non-retaliatory explanation for discharging Wheat (“[n]o JDS officer [] ever
physically attacked a youth . . . [or was] allowed to remain in the Commission's
employ after any such attack”). 3 In other words, the grounds for Wheat’s
discharge related solely to the incidents of January 3, 2012, immediately
preceding her discharge. In this light, the Commission offers no evidence or
argument to distinguish this different treatment of Wheat before and after
exercising her protected rights. 4 Therefore, the Commission’s inconsistent
treatment of Wheat raises disputed issues of material fact as to whether: but
for exercising her rights she would have been discharged.
       There is more, however. There is evidence that the Commission has been
inconsistent in its discharge of other employees who mistreated juveniles.
Edwin Marshall, a “Night Supervisor,” stated in his declaration that he was
discharged after “chemically restrain[ing]” a juvenile who “refuse[d] to obey
orders and continued to threaten staff with bodily harm.”                         Marshall
Declaration, at 2. But, when a different “supervisor restrained a . . . juvenile
and gave the juvenile several knee strikes while the juvenile was in handcuffs,”
the Commission did not discharge him. 

       Thus, in sum, the record before us indicates that the Commission has
discharged some employees for excessive force, but not others. This mixed
record constitutes substantial evidence of a genuine issue of material fact as to
whether Wheat’s discharge would have occurred “but for” exercising her


       3On appeal, for the first time, the Commission “agree[d] that to the extent Ms.
Wheat’s prior use of excessive force shows that her conduct was not unprecedented, the
Commission stood corrected.” Appellee Brief, at 34.
       4 Although the Commission has consistently described the 2005 incident in its briefing
before the district court, and this Court, it has never attempted to address or explain why it
treated Wheat differently in 2005, than it did in 2012.
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                                       No. 14-30788
protected rights. Thus, the district court erred in granting summary judgment
for the Commission.
                                              IV.
       For these reasons, the district court’s grant of summary judgment to the
Commission with regard to Wheat’s retaliatory termination claim is
VACATED and the case is REMANDED for further consideration not
inconsistent with this opinion.           The judgment is AFFIRMED in all other
respects. 5
                                                           VACATED and REMANDED
                                                            in part; AFFIRMED in part.




       5Wheat also alleged a sexual harassment claim under Title VII because a twelve-year-
old, female resident under her supervision made sexual advances toward her. After
reviewing the record, we find that this claim of inmate on employee harassment has no merit
under Title VII against the employer. See Royal v. CCC & R Tres Arboles, L.L.C., 

, 401 (5th Cir. 2013) (“Relevant [Title VII harassment] factors are ‘the frequency of the
discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a
mere offensive utterance; and whether it unreasonably interferes with an employee's work
performance.’”) (citations omitted); see also Clark Cnty. Sch. Dist. v. Breeden, 

,
271 (2001) (rejecting a sexual-harassment claim in part because “[t]he ordinary terms and
conditions of [the plaintiff’s] job required her to review the sexually explicit statement” that
formed the basis of the harassment complaint).
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                                  No. 14-30788
REEVES, District Judge, concurring in part and dissenting in part:
      I agree that Lillie Wheat’s retaliatory termination claim should proceed
to trial, while her sexual harassment claim cannot survive summary judgment.
Despite my agreement with much of the opinion, the majority errs when it
finds no prima facie case of pre-termination retaliation. To reach that
conclusion, the majority has to: (1) disregard record evidence, and (2) ignore
the defendant’s concession in the district court that Wheat had made out such
a prima facie case. I therefore must respectfully dissent.
                                           I.
      When a person sues her former employer and succeeds, she may not be
welcomed back with open arms. Embarrassing facts may have been unearthed
during the litigation; enemies may have been made. Facing scorn upon return
is not itself retaliation, true – but it is only natural for an employee to be alert
to the possibility. Retaliation still happens in this day and age. See, e.g., Brown
v. Mississippi Dep’t of Health, 256 F. App’x 710 (5th Cir. 2007) (affirming jury
verdict finding that the Mississippi Department of Health racially
discriminated against Albert Brown); Brown v. Mississippi Dep’t of Health, 550
F. App’x 228 (5th Cir. 2013) (affirming jury verdict finding that the Mississippi
Department of Health retaliated against Brown because he had prevailed in
his earlier racial discrimination suit).
      Wheat was an Assistant Director at the Florida Parishes Juvenile
Detention Center (FPJDC). After years of dutiful service, she was fired while
on FMLA leave and had to seek judicial relief to get her job back. Wheat
reached an amicable settlement and returned to work. Upon her return,
though, FPJDC assigned Wheat to janitorial duties for three weeks.
      That’s retaliation as a matter of common sense. I recognize that there is
not always a perfect overlap between common sense and the law, but in this
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                                 No. 14-30788
case they are one and the same. In other words, common sense tells me that
the reassignment was obvious retaliation, and the rules of procedure instruct
that the issue should be resolved by a jury.
                                       II.
      The majority begins with an “important” reminder: FPJDC is a
correctional institution “primarily for youths who are emotionally challenged,
exhibit drug and alcohol problems, mental problems, and suicidal tendencies.”
Slip Op. at 4. The description comes from the affidavit of Steven Happel,
FPJDC’s Director of Administration.
      I personally find this description unfortunate. “Emotionally challenged”
is not a clinical diagnosis. “Suicidal tendencies” probably should have read
“suicidal ideation.” And claiming that these children have “mental problems”
is hopelessly vague if not outright offensive.
      FPJDC is a typical juvenile detention center, not a specialized treatment
facility. Like other juvenile detention centers, it houses a variety of children.
Some have committed criminal offenses. Others are victims of violence seeking
refuge. And quite a few shouldn’t be there in the first place – especially those
who face no criminal charges. See N.G. v. Connecticut, 

, 239 (2d
Cir. 2004) (Sotomayor, J., concurring in part and dissenting in part) (describing
the “troubled adolescent girls facing no criminal charges” who were detained
and subjected to squat-and-cough strip searches).
      The truth is that kids are detained in juvenile detention centers for all
kinds of behavior. Hundreds of thousands of children run away from home
after suffering sexual or physical abuse. Lois A. Weithorn, Envisioning Second-
Order Change in America’s Responses to Troubled and Troublesome Youth, 33
Hofstra L. Rev. 1305, 1379 (2005). Yet hundreds of thousands of these “status


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                                      No. 14-30788
offenders” wind up in juvenile detention centers each year. 1 Patricia J. Arthur
& Regina Waugh, Status Offenses and the Juvenile Justice and Delinquency
Prevention Act: The Exception That Swallowed the Rule, 7 Seattle J. for Soc.
Just. 555, 555-56 (2009). Children have even been arrested for minor
schoolhouse disciplinary infractions including “texting, passing gas in class,
violating the school dress code, stealing two dollars from a classmate, bringing
a cell phone to class, arriving late to school, or telling classmates waiting in
the school lunch line that he would ‘get them’ if they ate all of the potatoes.”
Jason P. Nance, Students, Police, and the School-to-Prison Pipeline, --- Wash.
U.     L.     Rev.      ---,    at     *5-6        (last     rev’d    Nov.     2,    2015),
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2577333. 2 Vague claims
that they have “mental problems” therefore says little about the children.
       Still, as Judge, my duty is to set aside my personal views and examine
the evidence. At the summary judgment stage in particular, Judges “do not
weigh the evidence, assess its probative value, or resolve any factual disputes.”
Aubrey v. Sch. Bd. of Lafayette Par., 

, 318 (5th Cir. 1996).
       In this case, my duty requires me to acknowledge that the majority’s
description of FPJDC is accurately drawn from competent summary judgment
evidence: Happel’s affidavit.
       In her summary judgment response, Wheat (through counsel) argued
generally that Happel’s characterization was ambiguous and irrelevant. A
more specific objection may have had some merit at trial, but Wheat failed to



       1 “Status offenders” include children who have run away, skipped school, or broken
curfew, among other things. See Arthur & Waugh, 7 Seattle J. for Soc. Just. at 555.
       2 “The ‘School-to-Prison Pipeline’ (STPP) refers to the framework of the United States

school system that, by design, pushes students out of public schools through suspension or
expulsion and into a juvenile detention facility or prison.” Matthew W. Burris, Mississippi
and the School-to-Prison Pipeline, 3 Widener J.L., Econ. & Race 1, 2 (2011).
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                                      No. 14-30788
submit evidence contradicting this portion of Happel’s affidavit. 3 As a result,
the only evidence on this point is from Happel, and the majority is justified in
relying upon it in the opinion.
                                            III.
       I described the above only because the majority has not given the same
deference to Wheat’s evidence of pre-termination retaliation.
       First, the majority errs by disregarding Wheat’s sworn declaration that
she “was initially assigned to perform janitorial work and do intake” upon her
return to work. That too is evidence. See Fed. R. Civ. P. 56(c)(1)(A) (listing
declarations as competent summary judgment evidence). The majority’s
assertions that the declaration was merely “an allegation,” a “bare-bones
allegation,” “an unsupported conclusory claim,” and “a bare allegation” are
incorrect as a matter of law. Slip Op. at 7. There is no justification for
discounting this evidence.
       The majority’s error is compounded when it concludes that janitorial
duties are not materially adverse. My colleague has defined materially adverse
as something which inherently causes harm to an employee. Halliburton Co.
v. Admin. Review Bd., 596 F. App’x 340, 341 (5th Cir. 2015) (Jolly, J.,
dissenting from the denial of rehearing en banc). In other words, something is
materially adverse when “the negative effect on the employee is clear.” 

suggests that a downward reassignment to janitorial
duties has a clear negative effect on the employee. The plain meaning of janitor
is someone who cleans up after others. See, e.g., Webster’s Third New



       3 In fact, Wheat is equally if not more qualified than Happel to describe the needs of
the children in her care. She had worked at FPJDC longer than Happel, and had risen
through the ranks as a line officer, Shift Supervisor, and then Assistant Director. But
Wheat’s counsel failed to submit evidence from Wheat (or anyone else) on this point.
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                                     No. 14-30788
International Dictionary 1209 (1993) (defining janitor as “one that keeps the
premises of an apartment, office, or other building clean and free of refuse”).
Janitors sweep. They dust. They mop. They pick up and take out the trash.
They clean up messes others make by accident or by slothfulness. The
unfortunate contradiction inherent in their jobs, like so many jobs today, is
that they perform essential functions for other professionals yet receive low
pay, have little status, and are too-often invisible. 4 It would be a demotion for
anyone not hired as a janitor to be reassigned to janitorial duties.
      If plain meaning is not enough, decisions from the Supreme Court and
two courts of appeal, including this one, support the conclusion that
reassignment to janitorial duties is materially adverse.
      In Burlington Northern, the Supreme Court held that a job reassignment
is materially adverse when it involves “dirtier” work, has less “prestige,” and
is objectively considered a worse job. Burlington N. & Santa Fe Ry. Co. v.
White, 

, 71 (2006). The majority opinion quotes these criteria but
applies them in the exact wrong way. If reassignment to janitorial tasks –
dirtier, less prestigious, and worse than other duties – does not satisfy
Burlington Northern, what would?
      This very Court has found that reassignment to janitorial duties is
materially adverse. In Wilson v. Monarch Paper Company, a former Vice
President won a $3.4 million jury verdict after he was reassigned to perform
“housekeeping chores,” sweeping, and cafeteria cleanup. 

, 1145




      4   In 2014, there were approximately 2,360,600 janitors and building cleaners in
America. Their median wage in May of that year was $10.98 an hour. Bureau of Labor
Statistics, U.S. Department of Labor, Occupational Outlook Handbook, 2014-15 Edition,
Janitors      and     Building      Cleaners, http://www.bls.gov/ooh/building-and-grounds-
cleaning/janitors-and-building-cleaners.htm (last visited Dec. 22, 2015).
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                                       No. 14-30788
(5th Cir. 1991). In affirming, my colleague described those chores as “extreme
and outrageous” retaliation. 

       We find it difficult to conceive a workplace scenario more painful
       and embarrassing than an executive, indeed a vice-president and
       the assistant to the president, being subjected before his fellow
       employees to the most menial janitorial services and duties of
       cleaning up after entry level employees: the steep downhill push to
       total humiliation was complete.

true even when non-executives are reassigned to janitorial
duties. See Hoyle v. Freightliner, LLC, 

, 337 (4th Cir. 2011)
(concluding at summary judgment that truck assembler’s reassignment from
her regular position to unspecified janitorial duties was materially adverse).
       The majority endeavors mightily to distinguish our case from Wilson. 5 It
has convinced me of only two salient distinctions.
       The first – and the elephant in the room – is that this Court refused to
allow a white-collar corporate executive to be reassigned to janitorial duties,
but will allow a blue-collar correctional officer to be reassigned to those duties.
Why that makes sense in a system predicated upon equal justice under law is
beyond me. 6 “In my conscientious view, the Court should . . . mete out employee
rights on the same standard to all.” Halliburton, 596 F. App’x at 342 (Jolly, J.,
dissenting from the denial of rehearing en banc); see also Thompson v. City of
Waco, Tex., 

, 345 (5th Cir. 2015) (Jolly, J., dissenting from the


       5 The majority has not attempted to distinguish our case from Hoyle.
       6 In Wilson, my colleague could not conceive a workplace scenario more painful and
embarrassing than demotion to janitorial duties. It is difficult to reconcile those statements
with today’s admonishment that Wheat should have explained (in her complaint no less)
“why assignment to janitorial duties was an act of retaliation or an adverse employment
action.” Slip Op. at 9. It was just last year that the Supreme Court rebuked this court for
insisting that a complaint contain such a “punctiliously stated theory of the pleadings.”
Johnson v. City of Shelby, Miss., 

, 347 (2014) (per curiam) (quotation marks
and citation omitted).
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                                       No. 14-30788
denial of rehearing en banc) (complaining that “a particular panel can find
language, and indeed even legal principles, that likely will support any
conclusion that it may reach” as to whether an adverse employment action has
occurred).
       The second distinction is that Wilson presented evidence to a jury about
the extent and nature of his janitorial duties, while Wheat has not yet had that
opportunity. But the reason for this is obvious.
       Wheat submitted evidence that she had been assigned janitorial duties,
and argued that those duties were materially adverse. In response, FPJDC
conceded for purposes of summary judgment “that the plaintiff has established
her prima facie case with respect to her FMLA retaliation and Title VII gender
discrimination claims.” While it moved on to argue that it had a legitimate
reason for terminating Wheat and that Wheat had failed to show pretext – i.e.,
the second and third steps of the McDonnell Douglas analysis – it never
complained of ambiguity or introduced counter-evidence on the specifics of
Wheat’s janitorial duties. 7
       In other words, battle was not joined in the briefing or evidence over the
materially adverse element the majority finds lacking today: the nature of
Wheat’s janitorial “duties, time spent, or the humiliation, if any, that she
suffered.” Slip Op. at 9. The evidence that she performed those duties was
conceded to the defendant’s satisfaction, and the plain meaning of what those
duties entail – dirtier, less prestigious, and worse than other tasks – went



       7 The defendant’s concession renders moot whether janitorial duties were regularly
expected from line officers at the facility. On that point, however, the defendant’s appellate
brief states that when Wheat was reinstated as a JDS officer, “for the first few weeks after
her reinstatement, she was given janitorial and intake duties, before being assigned regular
JDS duties.” Defendant’s Brief at 14 (emphasis added). I take that to mean that janitorial
and intake duties were not regular duties of an officer in Wheat’s position.
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                                       No. 14-30788
unchallenged. 8 Wheat simply had no duty to detail the adversity inherent in
her reassignment to janitorial duties.
       From all this I conclude that the majority’s we-don’t-know-what-
janitorial-duties-really-means argument cannot be considered on appeal
because it was not made in the district court. 9 And it would be “gratuitous for
the majority to aid [a party] with a . . . theory of its own devising. Instead, we
should consider the . . . argument that [it] actually makes.” Mabary v. Home
Town Bank, N.A., 

, 828 (5th Cir. 2014) (Jolly, J., dissenting),
opinion withdrawn (Jan. 8, 2015); see also United States v. Pope, 

,
351 n.4 (5th Cir. 2006) (Jolly, J., dissenting) (“an appeals court should not




       8  Defense counsel likely assumed, reasonably, that Judges reviewing evidence for
summary judgment purposes are aware of the ordinary meaning of janitorial duties, both as
a matter of what that job physically entails and its attendant everyday meaning. Since it was
obvious and unchallenged, Wheat did not have to attach evidence quantifying the amount of
trash she had to pick up or the esteem in which her colleagues held janitorial work.
        Consider other examples from everyday life: When a maître de is assigned to do the
duties of a waiter or bus-boy, would there have to be a long discussion about what those
specific duties are? Or wouldn’t the parties simply agree that the bus-boy cleans tables while
the waiter takes orders and caters to the diners? Is there any doubt that a concierge would
view the tasks of a hotel maid as less prestigious? If the business manager of an Am Law 100
firm was assigned to be a receptionist or runner, we would have no problem understanding
the nature of the duties and the significance of the demotion. Or would we?
        9 “It is well settled in this Circuit that the scope of appellate review on a summary

judgment order is limited to matters presented to the district court.” Keelan v. Majesco
Software, Inc., 

, 339 (5th Cir. 2005) (citations omitted). When arguments are
“not even mentioned, much less argued, in the defendants’ motion for summary judgment, in
the plaintiffs’ response to the motion for summary judgment, or in the district court’s
memorandum opinion granting summary judgment,” they are “not properly presented to the
district court” and cannot be considered on appeal. Keenan v. Tejeda, 

, 262 (5th
Cir. 2002).
        The district court dismissed Wheat’s janitorial reassignment by reasoning that three
weeks’ worth of those duties did not rise to the level of an ultimate employment decision. But
that finding was infected by the application of what all parties and panel members agree was
the wrong legal standard. The correct question is whether Wheat’s reassignment was
materially adverse. It was. See Halliburton, 596 F. App’x at 340-41.
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                                     No. 14-30788
attempt to relitigate an issue forfeited below”), opinion withdrawn and
superseded, 

(5th Cir. 2006).
       We need not debate the relative strength of Wheat’s evidence. As my
colleague explained last year, in a case in which he found “feeble evidence,”
       [w]e have recognized at the summary judgment stage that the
       nonmoving party need not reduce all its evidence to an admissible
       form. Although it appears to me that much of the evidence is
       currently vague and relies heavily on speculation, I believe the
       panel has exercised appropriate caution by remanding this case to
       proceed with a trial.


Roque v. Natchitoches Par. Sch. Bd., 583 F. App’x 466, 471 (5th Cir. 2014)
(Jolly, J., concurring) (citation omitted). This sound advice should be applied
here. Accord 

(“[W]e have never held that a weak case is
necessarily one that should be disposed of on summary judgment. The question
at the summary judgment stage is not whether a jury is sure to find a verdict
for the plaintiff; the question is whether a reasonable jury could rationally so
find.”).
       With respect, I cannot join Part III.A of the majority opinion. 10




       10 Although less compelling, the majority’s analysis of Wheat’s delayed raise also
merits discussion. At least to my eyes, Wheat’s performance evaluation showed that her
“Very Good” rating made her due for a 4% step increase. I am not sure how the majority
concludes otherwise. Slip Op. at 10.
       Other record evidence supports an inference that Wheat should have received that
evaluation and step increase months earlier. The affidavit of Assistant Shift Supervisor
Brennan Sessions stated that “Ms. Wheat consistently earned annual pay raises, and her job
performance evaluations were either ‘Very Good’ or ‘Outstanding.’” (Emphasis added). Since
she reasonably expected annual raises tied to her annual performance reviews, it is
premature to conclude that the delay was nonretaliatory, particularly when combined with
the other retaliatory act (e.g., the janitorial duties).
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                                  No. 14-30788
                                        IV.
       A final word is owed on Wheat’s sexual harassment claim. As the
majority correctly concludes, Wheat’s interactions with the alleged harasser
did not objectively create a severe or pervasive hostile work environment.
       At the same time, I do not think the majority suggests – and I would not
agree if it had – that inmate-on-employee sexual harassment claims will
always fail because correctional officers should expect severe or pervasive
sexual advances as “ordinary terms and conditions” of their job. Slip Op. at 15
n.5 (quotation marks and citation omitted). That proposition is unsupported by
case law. See Beckford v. Dep’t of Corr., 

, 953 (11th Cir. 2010) (“We
conclude that the jury was entitled to find the [Florida Department of
Corrections] liable under Title VII because it unreasonably failed to remedy
the sexual harassment by its inmates.”); Vajdl v. Mesabi Acad. of KidsPeace,
Inc., 

, 550 n.2 (8th Cir. 2007); Freitag v. Ayers, 

, 538
(9th   Cir.   2006)   (“the   [California     Department     of   Corrections   and
Rehabilitation’s] contention that it cannot, as a matter of law, be liable under
Title VII for maintaining a hostile work environment caused by inmate
misconduct . . . is unsupported by the entire weight of case authority in this
circuit and others”); Slayton v. Ohio Dep’t of Youth Servs., 

, 679
(6th Cir. 2000) (affirming liability on hostile work environment claim where,
among other things, the supervisor “intentionally sent [the plaintiff, a
correctional officer in a juvenile facility] to check on an inmate who was
masturbating”).
       Given the weight of these authorities, and the fact that the legal question
is avoidable in this case, I would leave the issue for another day. See Valdiviez-
Hernandez v. Holder, 

, 193 (5th Cir. 2013) (Jolly, J., concurring)
(“I can see no compelling reason to initiate a circuit split”).
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                             No. 14-30788
  For these reasons, I respectfully dissent in part.




                                   26