Plaintiffs (nine women) filed a discrimination complaint with the Equal Employment Opportunity Commission and received Notice of Right to Sue Letters. On February 10, 2020, Plaintiffs filed suit against Dallas County ("the County") for violations of Title VII and the Texas Employment Discrimination Act (the "TEDA"). Specifically, they alleged that the County "engaged in the practice of discrimination with respect to the terms and conditions of Plaintiffs' employment." See Hamilton v. Dallas County, 42 F. 4th 550 (5th Cir. 2022).
On June 4, 2020, the County filed a motion to dismiss under Rule 12(b)(6) arguing that Plaintiffs failed to state a plausible claim for relief because they did not suffer an adverse employment action. On June 25, 2020, Plaintiffs filed a response arguing that the County's gender-based scheduling policy harmed their work conditions and made their jobs objectively worse. Alternatively, they requested leave to amend.
The district court granted the County's motion to dismiss. The district court acknowledged that the County's facially discriminatory scheduling policy demonstrated unfair treatment and that it was plausible that the denial of full weekends off made Plaintiffs' jobs objectively worse. Nonetheless, "the binding precedent of this [c]ircuit compel[led]" it to hold that Plaintiffs failed to state a claim upon which relief could be granted because they did not plead an adverse employment action. The district court granted Plaintiffs leave to amend their complaint, but because Plaintiffs did not amend their pleadings within thirty days, it ultimately dismissed the action with prejudice.
On appeal, Plaintiffs-Appellants argue that the district court erred by considering whether the County's scheduling policy constituted an adverse employment action rather than applying the statutory text of Title VII and the TEDA. They further contend that the scheduling policy qualifies as an adverse employment action.
Affirmed—Fifth circuit precedent requires a Title VII plaintiff to establish a prima facie case of discrimination by showing, inter alia, that she "suffered some adverse employment action by the employer." "[A]dverse employment actions include only ultimate employment decisions such as hiring, granting leave, discharging, promoting, or compensating."
Section 703(a)(1) of Title VII of the Civil Rights Act of 1964 makes it unlawful for an employer to "discriminate against any individual with respect to [her] compensation, terms, conditions, or privileges of employment, because of such individual's ... sex." 42 U.S.C. § 2000e-2(a)(1). Texas's Title VII analogue, the TEDA, similarly makes it an "unlawful employment practice" for an employer to "discriminate[]... against an individual in connection with compensation or the terms, conditions, or privileges of employment" because of sex. TEX. LAB. CODE ANN. § 21.051(1) (1993).
A plaintiff who has exhausted her administrative remedies may prove a claim of intentional discrimination either by direct or circumstantial evidence. McCoy v. City of Shreveport, 492 F.3d 551, 556 (5th Cir. 2007). "Direct evidence of an employer's discriminatory intent is rare; therefore, Title VII plaintiffs must ordinarily prove their claims through circumstantial evidence." Scales v. Slater, 181 F.3d 703, 709 (5th Cir. 1999). This court evaluates Title VII employment discrimination cases built on circumstantial evidence under the framework set forth in McDonnell Douglas Corp. v. Green. McCoy, 492 F.3d at 556. Under that framework, the plaintiff must first establish a prima facie case of discrimination by showing that she (1) is a member of a protected group; (2) was qualified for the position at issue; (3) was discharged or suffered some adverse employment action by the employer; and (4) was replaced by someone outside her protected group or was treated less favorably than other similarly situated employees outside the protected group. Id.
The Supreme Court has held, however, that "the McDonnell Douglas test is inapplicable where the plaintiff presents direct evidence of discrimination." Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121, 105 S.Ct. 613, 83 L.Ed.2d 523 (1985); accord Herster v. Bd. of Supervisors of La. State Univ., 887 F.3d 177, 185 (5th Cir. 2018). When a plaintiff presents direct evidence of discrimination, "the burden of proof shifts to the employer to establish by a preponderance of the evidence that the same decision would have been made regardless of the forbidden factor." Etienne v. Spanish Lake Truck & Casino Plaza, L.L.C., 778 F.3d 473, 475 (5th Cir. 2015), as revised (Feb. 3, 2015) (quoting Brown v. E. Miss. Elec. Power Ass'n, 989 F.2d 858, 861 (5th Cir. 1993)). This court has defined direct evidence as "evidence which, if believed, proves the fact without inference or presumption." Jones v. Robinson Prop. Grp., L.P., 427 F.3d 987, 992 (5th Cir. 2005). To determine whether comments in the workplace constitute "direct evidence," or only "stray remarks," this court has looked to four factors: whether the comments are (1) related to the plaintiff's protected characteristic; (2) proximate in time to the challenged employment decision; (3) made by an individual with authority over the challenged employment decision; and (4) related to the challenged employment decision. Etienne, 778 F.3d at 476. All four factors are satisfied here. "In the context of Title VII, direct evidence includes any statement or written document showing a discriminatory motive on its face." Herster, 887 F.3d at 185 (quoting Portis v. First Nat'l Bank of New Albany, 34 F.3d 325, 329 (5th Cir. 1994), as amended on denial of reh'g (Nov. 10, 1994)).
Here, Plaintiffs-Appellants pled that their supervising sergeant stated that the scheduling policy in question was based on gender. Accepting these facts as true, Plaintiffs-Appellants have alleged direct evidence of discrimination because the sergeant's statement about the policy shows a discriminatory motive on its face. In other words, no inference or presumption is required to get from the sergeant's statement —that the new scheduling policy was based on gender—to the conclusion that Plaintiffs-Appellants were denied full weekends off because they are women. As mentioned, this court rarely encounters direct evidence cases because employers seldom admit to a discriminatory motive as the sergeant did here.
The conduct complained of here fits squarely within the ambit of Title VII's proscribed conduct: discrimination with respect to the terms, conditions, or privileges of one's employment because of one's sex. Given the generally accepted meaning of those terms, the County would appear to have violated Title VII. See Threat v. City of Cleveland, 6 F.4th 672, 677-78 (6th Cir. 2021) (collecting definitions of "terms" and "privileges" contemporaneous to the enactment of Title VII). Moreover, the Supreme Court has explained that section 703(a) of Title VII refers to "actions that affect employment or alter the conditions of the workplace," Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 62, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006), and that "the particular days of the week during which employees shall be required to work are subjects well within the realm of 'wages, hours, and other terms and conditions of employment,'" Loc. Union No. 189, Amalgamated Meat Cutters & Butcher Workmen of N. Am. v. Jewel Tea Co., 381 U.S. 676, 691, 85 S.Ct. 1596, 14 L.Ed.2d 640 (1965). Surely allowing men to have full weekends off, but not women, on the basis of sex rather than a neutral factor like merit or seniority, constitutes discrimination with respect to the terms or conditions of those women's employment. And the benefits that come with seniority, here, the ability to request one's preferred days off, should amount to a privilege of employment.
Yet we are bound by this circuit's precedent, which requires a Title VII plaintiff to establish a prima facie case of discrimination by showing, inter alia, that she "suffered some adverse employment action by the employer." McCoy, 492 F.3d at 556. Further narrowing this requirement, we have held that "[a]dverse employment actions include only ultimate employment decisions such as hiring, granting leave, discharging, promoting, or compensating," Welsh v. Fort Bend Indep. Sch. Dist., 941 F.3d 818, 824 (5th Cir. 2019) (emphasis added), cert. denied, ___ U.S. ___, 141 S. Ct. 160, 207 L.Ed.2d 1097 (2020) (quoting McCoy, 492 F.3d at 559). This rule first arose in the Fifth Circuit nearly twenty-seven years ago when, in Dollis v. Rubin, 77 F.3d 777 (5th Cir. 1995), we adopted dictum from a Fourth Circuit case involving a different provision of Title VII. See id. at 781-782 ("Title VII was designed to address ultimate employment decisions, not to address every decision made by employers that arguably might have some tangential effect upon those ultimate decisions.") (citing Page v. Bolger, 645 F.2d 227, 233 (4th Cir. 1981). Today, our circuit precedent and the rule of orderliness* constrain us to conclude that because the denial of weekends off is not an ultimate employment decision, the district court correctly granted the County's motion to dismiss on the grounds that Plaintiffs-Appellants did not plead an adverse employment action. See Hernandez v. Sikorsky Support Servs., Inc., 495 F. App'x 435, 438 (5th Cir. 2012) (per curiam) (unpublished) (holding that a plaintiff whose supervisor denied her seniority-based preference in shift scheduling suffered no adverse employment action); Mylett v. City of Corpus Christi, 97 F. App'x 473, 475 (5th Cir. 2004) (per curiam) (unpublished) (holding that changes of work hours and the denial of day shifts are not adverse employment actions).
THIS CASEBOOK contains a selection of U. S. Court of Appeals decisions that analyze and discuss the elements of a Title VII prima facie case. Volume 1 of the casebook covers the District of Columbia Circuit and the First through the Fifth Circuit Court of Appeals. Volume 2 of the casebook covers the Sixth through the Eleventh Circuit Court of Appeals.