Byron Hickey v. Columbus Consolidated Govt.

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MARCH 29, 2010
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 08-15485
________________________
D. C. Docket No. 07-00096-CV-CDL-4
BYRON HICKEY,
Plaintiff-Appellee,
versus
COLUMBUS CONSOLIDATED GOVERNMENT, et al.,
Defendants,
CHIEF R.T. BOREN,
Individually and in his official capacity,
CAPT J. D. HAWK,
Individually and in his official capacity,
SGT. DAVID HORIUCHI,
Individually and in his official capacity,
Defendants-Appellants.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
_________________________
(March 29, 2010)

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Before BIRCH, BARKETT, Circuit Judges, and BUCKLEW, District Judge.*
BARKETT:
Police Chief R.T. Boren, Police Captain, J.D. Hawk, and Police Sergeant
David Horiuchi appeal from an adverse summary judgment in Byron Hickey’s suit
against them asserting employment discrimination and retaliation in violation of
Title VII, § 1981, the Equal Protection Clause, the First Amendment, and Georgia
state law. Hickey claims, inter alia, that, because of his race, Chief Boren
transferred him from Vice to Burglary and Theft. He also claims that he was
retaliated against for supporting another officer’s discrimination complaint against
the Department by the above-noted action as well as by a negative performance
review authored by Horiuchi and supported by Hawk and an extended
administrative assignment ordered by Chief Boren. He asserts that the negative
performance review was itself harmful, even though it was reversed the day
following its initial completion; that the administrative assignment resulted in lost
income due to a departmental rule barring officers from taking outside security-
related jobs while on administrative assignment, and that the transfer to Burglary
and Theft was also its own harm.
Honorable Susan C. Bucklew, United States District Judge for the Middle District of*
Florida, sitting by designation.
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The District Court denied qualified immunity to Boren on the § 1981
retaliation claims based on the extended administrative assignment as well as the §
1981 and Equal Protection discrimination and retaliation claims based on Hickey’s
transfer to Burglary and Theft. The District Court denied qualified immunity to
Hawk and Horiuchi on the 1981 retaliation claim based on the negative
performance review. Boren, Hawk, and Horiuchi appeal these determinations.
Initially, we reject the appellants’ argument that a claim for retaliation under
Section 1981 was not clearly established at the time of the allegedly unlawful
conduct. See Andrews v. Lakeshore Rehabilitation Hospital, 140 F.3d 1405 (11th
Cir. 1998) (recognizing § 1981 post-hiring retaliation claims); Pinkard v.
Pullman-Standard, 678 F.2d 1211, 1229 (5th Cir. Unit B 1982).
However, we find merit in Boren’s argument that, rather than applying the
law at the time of the incidents at issue, the district applied a later-developed legal
standard for retaliation, first discussed in Burlington Northern & Santa Fe Railway
Co., 548 U.S. 53 (2006), to the alleged facts of the case. The clearly-established
law governing retaliation claims in this circuit at the time of the conduct at issue
provided that “in order to be considered an adverse employment action . . . the
action must either be an ultimate employment decision or else must meet some
threshold level of substantiality.” Stravropoulos v. Firestone, 361 F.3d 610,
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616-617 (11th Cir. 2004).
Subsequent to the actions relevant here, the Supreme Court rejected this
standard in Burlington Northern. See Crawford v. Carroll, 529 F.3d 961, 973-74
(11th Cir. 2008) (Burlington Northern retaliation standard more lenient to plaintiffs
alleging retaliation under Title VII than 11th Circuit standard in effect at time of
defendants’ allegedly unlawful conduct). Instead, the Supreme Court held 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.’” Burlington Northern, 548 U.S. at 60. (internal citation omitted).
The Court further explained that:
We speak of material adversity because we believe it is important to separate
significant from trivial harms. Title VII, we have said, does not set forth “a
general civility code for the American workplace.” . . .
We refer to reactions of a reasonable employee because we believe that the
provision's standard for judging harm must be objective. An objective
standard is judicially administrable. It avoids the uncertainties and unfair
discrepancies that can plague a judicial effort to determine a plaintiff's
unusual subjective feelings. . . .
[T]his standard . . . is tied to the challenged retaliatory act, not the
underlying conduct that forms the basis of the Title VII complaint. By
focusing on the materiality of the challenged action and the perspective of a
reasonable person in the plaintiff's position, we believe this standard will
screen out trivial conduct while effectively capturing those acts that are
likely to dissuade employees from complaining or assisting in complaints
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about discrimination.
Id. at 68-69 (internal citations omitted).
Although this is the applicable standard now, subsequent law cannot be
applied in a qualified immunity context unless pre-existing law, at the time of the
allegedly unlawful conduct, is clearly established such that it would give notice to
a reasonable official of the wrongfulness of the conduct. See Hope v. Pelzer, 536
U.S. 730, 739-41 (2002).
Accordingly, Boren’s actions relative to the extended administrative
assignment must be evaluated under the clearly established law existing at the time
of the alleged unlawful conduct, and we reverse and remand the denial to Boren of
qualified immunity for reconsideration under that standard.
As to the claim of discrimination against Boren for Hickey’s transfer to
Burglary and Theft and the claims against Hawk and Horiuchi, we reverse the
denial of qualified immunity. Hickey argues that Horiuchi did not follow required
procedures when he decided to down-grade one of the thirteen elements of
Hickey’s 2006 appraisal without giving Hickey advance notice of his intent to do
so. However, Hickey’s January 19, 2006 performance evaluation by Horiuchi did
not result in any tangible harm such as the loss of his job, a delay in his annual
raise, a decrease in his earnings or degrading of his position. Moreover, the January
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19th evaluation was rejected and never became part of Hickey’s personnel record.
When Hickey’s grievance was resolved in Hickey’s favor, a new - and higher -
evaluation was substituted. Because the evaluation process was suspended as soon
as Hickey contested his appraisal, and before Hickey suffered any tangible harm,
Horiuchi’s non-compliance with Departmental policy – and Hawk’s approval of
that non-compliance – did not rise to the level of substantiality required by the
clearly-established law that existed in this circuit at the time. See Pennington v.
City of Huntsville, 261 F.3d 1262, 1267 (11th Cir. 2001) (decision to reprimand or
transfer an employee, if rescinded before the employee suffers a tangible harm, is
not an adverse employment action).
Likewise, the transfer to the Burglary unit did not result in any tangible
harm. As such, it too cannot make out a discrimination claim. See Davis v. Lake
Park, 245 F.3d 1232, 1243-45 (11th Cir. 2001).
REVERSED AND REMANDED.
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