Black Fire District Chief's Nonselection Not Adverse for Bias Claims, 5th Cir. Says

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By Jay-Anne Casuga

April 21 — A 51-year-old black fire district chief for the San Antonio Fire Department can't proceed with age and race bias and retaliation claims because his nonselection for a different district chief position wasn't an adverse action, the U.S. Court of Appeals for the Fifth Circuit ruled April 20.

Affirming summary judgment to the fire department, the Fifth Circuit found that Randy Jenkins failed to show that the position he was denied would have benefited him financially, bestowed more prestige, or required greater skill, education or experience than his current position. As such, the court said, Jenkins sought a purely lateral transfer, the denial of which is not considered to be an adverse employment action under Title VII of the 1964 Civil Rights Act or the Age Discrimination in Employment Act.

Additionally, the appeals court affirmed the dismissal of Jenkins's bias claims based on a duty reassignment that occurred about one year before his nonselection. The court applied a three-day presumption to calculate when Jenkins received an Equal Employment Opportunity Commission right-to-sue letter and concluded that those particular claims were untimely.

Judge Catharina Haynes wrote the opinion, joined by Judges Edith Jones and Marcia A. Crone.

Purely Lateral Transfers Not Adverse

The denial of a transfer “may be the objective equivalent of the denial of a promotion, and thus qualify as an adverse employment action … if the position sought was objectively better,” the Fifth Circuit explained.

The court said it must evaluate whether the new position would include an increase in pay or other tangible benefits; provide more responsibility, better job duties or additional career enhancement opportunities; require greater skill, education or experience; or be otherwise viewed as “objectively more prestigious.”

Jenkins was one of two district chiefs of the Fire Prevention Division. He oversaw arson, special events, inspections and administration, while the other chief was responsible for community safety and education. Those duties were realigned in 2011, and Jenkins began overseeing community safety and education.

In 2012, Jenkins applied for, but wasn't selected to fill, the other district chief position when it became vacant. Jenkins alleged that his nonselection was impermissibly based on his race or age or was in retaliation for filing an earlier EEOC charge.

The Fifth Circuit affirmed that Jenkins can't establish a prima facie case for those claims, which require him to show that he experienced an adverse employment action.

Jenkins didn't demonstrate that the other position would have resulted in greater financial benefits, the court said.

“[N]or does he offer evidence, beyond his subjective beliefs, that the … position was more prestigious or required greater skill, education, or experience,” it added, concluding that Jenkins's nonselection wasn't an adverse action.

In addition, the court said Jenkins's ADEA claim fails because the selected candidate was less than two years younger and such an age gap is insufficient to support an age bias claim.

Other Claims Untimely

The Fifth Circuit also upheld the dismissal of Jenkins's untimely bias and retaliation claims related to the 2011 duty realignment.

Jenkins testified he was not sure when he received the EEOC's right-to-sue letter for those claims, and he urged the court to apply a presumption that he received it five days after the agency mailed him the letter.

The appeals court declined to do so and instead applied a three-day presumption adopted by “the majority of other circuit courts,” which made untimely the filing of Jenkins's claims stemming from the 2011 realignment.

Forte & Pittard represented Jenkins. Fitzpatrick & Kosanovich and the San Antonio City Attorney's Office represented the fire department.

To contact the reporter on this story: Jay-Anne Casuga in Washington at

To contact the editor responsible for this story: Susan J. McGolrick at

Text of the opinion is available at