IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-50483

RANDY JENKINS, 

 Plaintiff - Appellant

v.

CITY OF SAN ANTONIO FIRE DEPARTMENT, 

 Defendant - Appellee

Appeal from the United States District Court

for the Western District of Texas

Before JONES and HAYNES, Circuit Judges, and CRONE, District Judge.*

HAYNES, Circuit Judge:

Appellant Randy Jenkins filed suit against the City of San Antonio Fire 

Department (“Fire Department”), alleging discrimination on the basis of race 

and age, and retaliation, in violation of Title VII. Because Jenkins’s complaint 

was, in part, untimely, and failed to establish a prima facie case of 

discrimination and retaliation, we AFFIRM the district court’s grant of 

summary judgment in favor of the Fire Department.

 

* District Judge of the Eastern District of Texas, sitting by designation.

United States Court of Appeals

Fifth Circuit

FILED

April 20, 2015

Lyle W. Cayce

Clerk

 

 Case: 14-50483 Document: 00513011661 Page: 1 Date Filed: 04/20/2015
No. 14-50483

I. Background

Randy Jenkins, a 51-year-old African-American male, has served in the 

San Antonio Fire Department since 1986. The Fire Department is headed by 

the Fire Chief, Charles Hood, who oversees a deputy chief, assistant chiefs, 

district chiefs, captains, lieutenants, engineers, and firefighters. In 2008, 

Jenkins was appointed as one of two district chiefs of Fire Prevention, 

reporting directly to Assistant Chief Earl Crayton. In this capacity, Jenkins 

was responsible for oversight of Community Safety & Education (“CS&E”). 

When the other district chief in the Fire Prevention Division left, Jenkins

temporarily assumed his responsibilities, which included oversight of Arson, 

Special Events, Inspections, and Administration. Eventually, a new district 

chief was assigned to the Fire Prevention Division and given responsibility for 

CS&E while Jenkins retained oversight of Special Events, Inspections, and 

Administration. Assistant Chief Crayton oversaw the Arson office. 

After the recently appointed district chief left in 2009, Captain 

Christopher Monestier was hired as his replacement and assigned oversight of 

CS&E and Special Events. In 2011, Assistant Chief Crayton “realigned” 

Jenkins and Monestier’s duties. Jenkins would oversee CS&E, while 

Monestier was delegated responsibility for Inspections and Special Events. 

Jenkins did not suffer a reduction in rank or benefits but perceived the 

realignment as discrimination based on his race, color, or age as well as 

retaliation for giving a statement supporting an EEOC charge against 

Crayton. Jenkins filed an EEOC charge to this effect on August 19, 2011, and 

the EEOC issued a right-to-sue letter on May 16, 2012. 

Monestier vacated his position within the division in 2012, and Assistant 

Chief Crayton solicited applications for the open position from all district 

chiefs. A review panel was formed to interview and recommend a candidate 

for approval. The panel was composed of a director in the City’s Department 

2

 Case: 14-50483 Document: 00513011661 Page: 2 Date Filed: 04/20/2015
No. 14-50483

of Development Services, the Chief of Operations for the Fire Department, and 

a deputy chief in the Police Department. Two candidates applied for the 

position, Jenkins and District Chief Matias Jimenez, a Hispanic male. The 

panel unanimously chose Jimenez, and his appointment was approved by Fire 

Chief Hood. Jimenez was given responsibility for Inspections, Administration, 

and Special Events, while Jenkins retained oversight of CS&E. On August 17, 

2012, Jenkins filed an additional charge with the EEOC, complaining that he 

was not selected for the position for discriminatory and retaliatory reasons.

Jenkins filed suit in district court on August 20, 2012, alleging that the 

2011 reassignment of duties was a product of race and age discrimination. He 

also included a retaliation claim, alleging that Assistant Chief Crayton was 

punishing Jenkins for making statements supporting a charge against 

Crayton.

On May 16, 2013, Assistant Chief Crayton again realigned office 

responsibilities, charging Jenkins with oversight of boarding homes, schools, 

hospitals, nursing homes, and congregate living, all of which had previously 

been under the purview of Inspections. He was also tasked with overseeing 

special events, HazMat, after-hours details, and supervision of engineers 

assigned to the Fire Marshal’s Office. All of this was in addition to his CS&E 

responsibilities. 

On June 26, 2013, Jenkins amended his complaint in district court to 

include the claims raised in his second EEOC charge; namely, that the Fire 

Department discriminated against him on the basis of his race and age by 

selecting Jimenez to be District Chief of Inspections. He also alleged that the 

Fire Department refused to appoint him to the position in retaliation for filing 

the first EEOC charge. 

The district court granted summary judgment in favor of the Fire 

Department. It held that Jenkins’s discrimination and retaliation claims 

3

 Case: 14-50483 Document: 00513011661 Page: 3 Date Filed: 04/20/2015
No. 14-50483

stemming from the 2011 reassignment of duties were not timely filed. Even 

assuming his suit was timely, the district court found that Jenkins’s

discrimination and retaliation claims stemming from both the 2011 

reassignment and Jenkins’s non-selection as District Chief of Inspections in 

2012 failed because he was unable to establish a prima facie case. Jenkins 

timely appealed. 

II. Discussion

The EEOC issued a right-to-sue letter on May 16, 2012, allowing Jenkins 

to sue for the discrimination and retaliation claims raised in his 2011 EEOC 

charge. Jenkins had 90 days from the date of receipt to file suit, but he is 

unsure about when he received the notice. See 42 U.S.C. § 2000e-5(f)(1). 

“When the date on which a right-to-sue letter was actually received is either 

unknown or disputed, courts have presumed various receipt dates ranging 

from three to seven days after the letter was mailed.” Taylor v. Books A 

Million, Inc., 296 F.3d 376, 379 (5th Cir. 2002). The district court, applying a 

three-day presumption, found that Jenkins received notice on May 19, 2012, 

which required Jenkins to file his complaint by August 17, 2012. Because 

Jenkins filed his complaint on August 20, 2012, the district court held it 

untimely.

Jenkins urges us to apply a more lenient presumption of five days, which 

will render his suit timely. See FED. R. CIV. P. 6(a)(1)(c) (Although August 20, 

2012, is ninety-six days after issuance of the right to sue letter, August 19, 

2012, was a Sunday. For the purposes of computing time to file suit, “if the 

last day is a Saturday, Sunday, or legal holiday, the period continues to run 

until the end of the next day.”). We have applied different presumptions in 

different contexts and have noted that “[t]he exact number of days is thus an 

open question in this Circuit.” Morgan v. Potter, 489 F.3d 195, 196 (5th Cir. 

2007); Martin v. Alamo Cmty. Coll. Dist., 353 F.3d 409, 411 (5th Cir. 2003) 

4

 Case: 14-50483 Document: 00513011661 Page: 4 Date Filed: 04/20/2015
No. 14-50483

(applying a three-day presumption). Moreover, the majority of other circuit 

courts apply a three-day presumption of receipt, primarily citing to Federal 

Rule of Civil Procedure 6(d),1 which assumes receipt three days after service is 

mailed. See, e.g., Payan v. Aramark Mgmt. Servs. Ltd. P’ship, 495 F.3d 1119, 

1125 (9th Cir. 2007); Kerr v. McDonald’s Corp., 427 F.3d 947, 953 (11th Cir. 

2005); Seitzinger v. Reading Hosp. and Med. Ctr., 165 F.3d 236, 239 (3d Cir. 

1999); Nguyen v. Inova Alexandria Hosp., 187 F.3d 630, 1999 WL 556446, at 

*3 (4th Cir. 1999) (unpublished); Smith–Haynie v. District of Columbia, 155 

F.3d 575, 578 n.3 (D.C. Cir. 1998); Sherlock v. Montefiore Med. Ctr., 84 F.3d 

522, 525–26 (2d Cir. 1996); see also Baldwin Cnty. Welcome Ctr. v. Brown, 466 

U.S. 147, 148 n.1 (1984) (presuming the plaintiff received a right-to-sue letter 

three days after delivery based on Federal Rule of Civil Procedure 6(e)). But 

see Lozano v. Ashcroft, 258 F.3d 1160, 1164–65 (10th Cir. 2001) (noting that 

the court has approved either a three-day or a five-day presumption); Graham–

Humphreys v. Memphis Brooks Museum of Art, Inc., 209 F.3d 552, 557 n.9 (6th 

Cir. 2000) (“The Sixth Circuit allots two days for postal delivery of a RTS notice 

beyond the three day period allowed by Federal Rule of Civil Procedure 6(e).”).

We have repeatedly noted that a three-day presumption is permissible, 

and have applied such a presumption. See Martin, 353 F.3d at 411; see also 

Morgan, 489 F.3d at 196 (“[W]e have previously expressed the view that a 

three-day presumption is reasonable . . . .”). Appellant’s arguments to the 

contrary are unavailing. Jenkins cites to 29 C.F.R. § 1614.604(b) for the 

proposition that a document is timely if, in the absence of a postmark, it is 

received within five days of the expiration of the applicable filing period. 

Unfortunately for Jenkins, this provision applies only to federal employees, 

1 Federal Rule of Civil Procedure 6 has since been amended so that the former Rule 

6(e) is now found in Rule 6(d).

5

 

 Case: 14-50483 Document: 00513011661 Page: 5 Date Filed: 04/20/2015
No. 14-50483

which Jenkins is not. See 29 C.F.R. § 1614.103. Jenkins’s policy arguments 

are likewise unpersuasive.2 We conclude that, where the date of receipt is not 

known,3 courts should apply a presumption that the plaintiff received the 

notice in three days. Accordingly, we affirm the district court’s holding that 

Jenkins’s claims arising from his 2011 EEOC charge were not timely filed.

Because Jenkins’s complaint arising from his 2011 allegations of 

discrimination and retaliation was not timely filed, we turn to the allegations 

enumerated in his 2012 EEOC charge. Jenkins contends that he was 

discriminated against on the basis of his race and age when he was not selected 

for the position of District Chief of Inspections, and that his non-selection for 

the position was also in retaliation for filing the 2011 EEOC charge. The 

district court found that Jenkins failed to state a prima facie case of 

discrimination because his non-selection for the Inspections position was not 

an adverse employment action.

We review the district court’s grant of summary judgment de novo. 

Haire v. Bd. of Supervisors of La. State Univ. Agric. & Mech. Coll., 719 F.3d 

356, 362 (5th Cir. 2013). 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). “We construe

all facts and inferences in the light most favorable to the nonmoving party,” 

Dillon v. Rogers, 596 F.3d 260, 266 (5th Cir. 2010), but “[s]ummary judgment 

may not be thwarted by conclusional allegations, unsupported assertions, or 

2 Jenkins seemingly argues that application of the three-day presumption does not 

afford the EEOC’s regulations appropriate deference. Given that the EEOC regulations cited 

by Jenkins are inapplicable here, this argument necessarily fails. 

3 Such a presumption is unnecessary and inappropriate, of course, if there is other 

evidence showing a date of receipt earlier or later, such as postal evidence or testimony from 

the plaintiff or other persons with personal knowledge.

6

 

 Case: 14-50483 Document: 00513011661 Page: 6 Date Filed: 04/20/2015
No. 14-50483

presentation of only a scintilla of evidence,” McFaul v. Valenzuela, 684 F.3d 

564, 571 (5th Cir. 2012). 

When, as here, there is no direct evidence of discrimination, we apply the 

modified McDonnell Douglas4 burden-shifting framework. See Burrell v. Dr. 

Pepper/Seven Up Bottling Grp., Inc., 482 F.3d 408, 411 (5th Cir. 2007). Under 

the modified McDonnell Douglas approach, Jenkins must first establish a 

prima facie case of racial discrimination by showing that “(1) he belongs to a 

protected group; (2) he was qualified for the position sought; (3) he suffered an 

adverse employment action; and (4) he was replaced by someone outside the 

protected class.” Price v. Fed. Express Corp., 283 F.3d 715, 720 (5th Cir. 2002). 

We agree with the district court’s assessment that Jenkins did not suffer 

an adverse employment action. While the denial of a purely lateral transfer is 

not an adverse employment action redressible under Title VII, see Burger v. 

Cent. Apartment Mgmt., Inc., 168 F.3d 875, 879 (5th Cir. 1999), “the denial of 

a transfer may be the objective equivalent of the denial of a promotion, and 

thus qualify as an adverse employment action, even if the new position would 

not have entailed an increase in pay or other tangible benefits[,] if the position 

sought was objectively better.” Alvarado v. Tex. Rangers, 492 F.3d 605, 614 

(5th Cir. 2007) (emphasis in original). As part of this inquiry, we evaluate 

whether the position sought “entails an increase in compensation or other 

tangible benefits; provides greater responsibility or better job duties; provides 

greater opportunities for career enhancement; requires greater skill, 

education, or experience; is obtained through complex selection process; or is 

otherwise objectively more prestigious.” Id. (citations omitted). 

4 McDonnell Douglas Corp. v. Green, 411 U.S. 792, 793 (1973).

7

 

 Case: 14-50483 Document: 00513011661 Page: 7 Date Filed: 04/20/2015
No. 14-50483

None of these factors support Jenkins. He would not benefit financially 

as District Chief of Inspections,5 nor does he offer evidence, beyond his 

subjective beliefs, that the Inspections position was more prestigious or 

required greater skill, education, or experience than his position as District 

Chief in charge of CS&E. See Pegram v. Honeywell, Inc., 361 F.3d 272, 283

(5th Cir. 2004) (a plaintiff’s subjective belief, without more, is insufficient to 

establish that a transfer resulted in a loss of prestige). In sum, Jenkins’s has 

failed to establish that his non-selection as District Chief of Inspections was 

an adverse employment action.

For the same reason, Jenkins is unable to establish a prima facie case of 

age discrimination, which requires Jenkins to show, among other things, that 

he suffered an adverse employment action. Smith v. City of Jackson, 351 F.3d 

183, 196 (5th Cir. 2003). Not only did Jenkins not suffer an adverse 

employment action for the reasons above, but also the employee hired in lieu 

of Jenkins was less than two years younger than he. An age gap of less than 

two years is insufficient to support a prima facie case of age discrimination. 

See, e.g., O’Connor v. Consol. Caterers Corp., 517 U.S. 308, 313 (1996) (“In the 

age-discrimination context, such an inference cannot be drawn from the 

replacement of one worker with another worker insignificantly younger.”); see 

also Earle v. Aramark Corp., 247 F. App’x 519, 523 (5th Cir. 2007)

(unpublished) (finding that a four year age gap was an insignificant age 

difference that is not sufficient to support a prima facie case of age 

discrimination); Rachid v. Jack In The Box, Inc., 376 F.3d 305, 312 (5th Cir. 

2004) (stating that an age difference of five years is a “close question”). 

5 While Jenkins claims that he has fewer opportunities for overtime pay as District 

Chief of CS&E compared to District Chief of Inspections, he failed to rebut evidence that the 

opposite is in fact true.

8

 

 Case: 14-50483 Document: 00513011661 Page: 8 Date Filed: 04/20/2015
No. 14-50483

Finally, Jenkins’s retaliation claim based on the 2012 selection process 

also fails. He maintains that the Fire Department refused to appoint him as 

District Chief of Inspections in response to his filing of the 2011 EEOC charge. 

Where, as here, the Plaintiff does not provide direct evidence of retaliation,6

Jenkins must show that (1) he engaged in conduct protected by Title VII; (2) 

he suffered a materially adverse action; and (3) a causal connection exists 

between the protected activity and the adverse action. See Aryain v. Wal-Mart 

Stores Tex. LP, 534 F.3d 473, 484 (5th Cir. 2008). It is undisputed that the 

filing of an EEOC charge is protected conduct. See Harvill v. Westward 

Commc’ns, LLC, 433 F.3d 428, 439 (5th Cir. 2005).

A materially adverse action, in the retaliation context, is one which 

might “dissuade[] a reasonable worker from making or supporting a charge of 

discrimination.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 

(2006) (citation and internal quotation marks omitted). Jenkins’s retaliation 

claim cannot satisfy this standard for largely the same reasons his 

discrimination claims failed. The roles of District Chief of CS&E, which 

Jenkins retained, and District Chief of Inspections were considered equivalent 

within the Fire Prevention Division, and there is no evidence that they differed 

in terms of compensation, benefits, working conditions, or other factors. See 

Aryain, 534 F.3d at 485 (indicating that the transfer from an arduous and 

prestigious position to another comparatively less important position could 

weigh in favor of material adversity). Despite his assertion that the District 

6 As part of Jenkins’s untimely 2011 discrimination claim, he proffered alleged direct 

evidence of retaliation in the form of statements made by Assistant Chief Crayton in 2009 or 

2010. Those statements by Assistant Chief Crayton do not benefit Jenkins here, as they were 

made several years prior to the allegedly adverse employment action and thus lack sufficient 

temporal proximity to serve as direct evidence. See, e.g., Ray v. United Parcel Serv., 587 F. 

App’x 182, 188 (5th Cir. 2014) (unpublished) (finding that time span of four to thirteen 

months between comments and alleged discriminatory conduct were too remote in time to 

serve as direct evidence). 

9

 

 Case: 14-50483 Document: 00513011661 Page: 9 Date Filed: 04/20/2015
No. 14-50483

Chief of CS&E is perceived as less prestigious and provides fewer avenues for 

advancement, Jenkins acknowledges that the role was vital to the Fire 

Department and that as District Chief of CS&E he served as the face of Fire 

Prevention within the community. Furthermore, whether an employment 

action is materially adverse is an objective query, and here Jenkins relies 

solely on his subjective impressions for support. See White, 548 U.S. at 68–69. 

Thus, while Jenkins clearly coveted the role of District Chief of Inspections, his

subjective preference is not enough to make his non-selection materially 

adverse. Aryain, 534 F.3d at 485 (citing White, 548 U.S. at 68). 

For the foregoing reasons we AFFIRM the judgment of the district court.

10

 Case: 14-50483 Document: 00513011661 Page: 10 Date Filed: 04/20/2015