United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 96-2395

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Diane Ledergerber, *

*

Appellant, *

*

v. * Appeal from the United States

District

* Court for the Western District of

Gary Stangler; Carmen Schultze, * Missouri.

*

Appellees. *

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Submitted: January 17, 1997

Filed: September 8, 1997

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Before RICHARD S. ARNOLD, Chief Judge, and ROSS and BEAM, Circuit Judges.

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ROSS, Circuit Judge.

Diane Ledergerber (appellant), a Caucasian income maintenance

supervisor with the Division of Family Services (DFS) of the Missouri

Department of Social Services (DSS), filed this action on February 24,

1995. She alleged that Gary Stangler, director of DSS, and Carmen Schulze,

director of DFS (appellees), discriminated against her on the basis of her

race, in violation of Title VII, 42 U.S.C. § 2000e-2; 42 U.S.C. § 1981a,

and that they retaliated against her for opposing their alleged policy of

affording deference to African-American employees, in violation of 42

U.S.C. § 2000e-
The Honorable Scott O. Wright, Senior United States District Judge for the

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Western District of Missouri.

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3; 42 U.S.C. § 1981a. The district court granted summary judgment in

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favor of the appellees. We affirm. 

On March 25, 1993, sixteen African-American income maintenance

caseworkers jointly filed a charge of racial discrimination against DFS

regarding hiring and evaluation practices, probationary procedures, and

general disparate treatment. Appellant’s name did not appear in this

charge of discrimination. On July 20, 1993, three of these caseworkers

filed a new charge of discrimination, this time asserting that appellant

had retaliated against them for filing the earlier discrimination charge

by searching a complainant’s desk in her absence, selectively enforcing

office dress code against a complainant, and reprimanding complainants for

abusing break-time privileges, while ignoring infractions of other

employees. 

After an investigation of the two discrimination charges, DSS

director Stangler found that hiring practices at the DFS office were

flawed, that caseworker case approval and probation were inconsistently

applied, and that two of the six allegations of retaliation against

appellant were substantiated, including appellant’s decision to send one

complainant home for improper office attire and her reprimand of another

complainant for failing to adhere to break-time policies. Stangler

recommended changes in hiring, probation, and case approval practices and

mediation of disputes. Concluding that the atmosphere in appellant’s

section was “rife with tension and dissension,” Stangler also recommended

corrective action for appellant. 

Following Stangler’s recommendation, effective November 16, 1993,

appellant’s staff of four income maintenance supervisors and their

caseworkers were replaced with a different staff of four income maintenance

supervisors and their caseworkers. It is undisputed that appellant’s

position as an Income Maintenance Supervisor III remained
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unchanged, and that her basic responsibilities and staff size remained

substantially the same. 

Appellant subsequently filed suit, asserting that the replacement of

her staff and the placement in her file of a statement that discriminatory

practices would not be tolerated constituted discrimination on the basis

of her race, as well as retaliation against her for opposing appellees’

alleged policy of giving deference to African-American employees. The

district court determined that appellant had established a prima facie case

of discrimination, but ultimately concluded that appellant’s claim must

fail because appellant was unable to show that the appellees’ actions were

taken on the basis of race or retaliation. 

In reviewing a grant of summary judgment, this court applies the

same standard as the district court and views the facts in the light most

favorable to the non-moving party, giving that party the benefit of all

reasonable inferences to be drawn from those facts. Harlston v. McDonnell

Douglas Corp., 37 F.3d 379, 382 (8th Cir. 1994). 

A Title VII plaintiff has the initial burden of establishing by a

preponderance of the evidence a prima facie case of discrimination. Only

upon this prima facie showing does the burden of production shift to the

employer to articulate some legitimate, nondiscriminatory reason for the

employment action at issue. If the employer carries this burden of

production, the burden shifts back to the employee to demonstrate that the

proffered reason is mere pretext for discrimination. Thomas v. Runyon, 108

F.3d 957, 959 (8th Cir. 1997).

In order to overcome her initial burden of establishing a prima facie

case of discrimination or retaliation, appellant was required to show,

among other things, that she suffered an adverse employment action that

affected the terms or conditions of her employment. Harlston, 37 F.3d at

382. The district court believed that appellant satisfied this burden by

producing evidence that she suffered a loss of status and
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prestige with the reassignment of her staff. We conclude, however, that

appellant failed to establish how such consequences effectuated a material

change in the terms or conditions of her employment. While the action

complained of may have had a tangential effect on her employment, it did

not rise to the level of an ultimate employment decision intended to be

actionable under Title VII. In Harlston, 37 F.3d at 382, we stated that

“[c]hanges in duties or working conditions that cause no materially

significant disadvantage . . . are insufficient to establish the adverse

conduct required to make a prima facie case.” There, we held that a

secretary’s reassignment to a different position without any reduction in

title, salary or benefits, even though the new position involved fewer

secretarial duties and was more stressful, did not constitute an adverse

employment action. We stated that “[t]his describes nothing ‘more

disruptive than a mere inconvenience or an alteration of job

responsibilities.’” Id. (quoting Crady v. Liberty Nat’l Bank & Trust Co.,

993 F.2d 132, 136 (7th Cir. 1993)). See also Flaherty v. Gas Research

Inst., 31 F.3d 451, 457 (7th Cir. 1994) (holding a semantic change in title

and a “bruised ego” did not constitute adverse employment action where pay,

benefits and level of responsibility remained the same); Spring v.

Sheboygan Area Sch. Dist., 865 F.2d 883, 886 (7th Cir. 1989) (finding

“public humiliation” is not sufficient to establish age discrimination

because “public perceptions were not a term or condition of [the

plaintiff’s] employment”).

The clear trend of authority is to hold that a “purely lateral

transfer, that is, a transfer that does not involve a demotion in form or

substance, cannot rise to the level of a materially adverse employment

action.” Williams v. Bristol-Meyers Squibb Co., 85 F.3d 270, 274 (7th Cir.

1996) (emphasis in original). A transfer involving only minor changes in

working conditions and no reduction in pay or benefits will not constitute

an adverse employment action, “[o]therwise every trivial personnel action

that an irritable . . . employee did not like would form the basis of a

discrimination suit.” Id.
We agree with the Seventh Circuit that an employer cannot insulate itself from 2

liability for discrimination merely by offering a transfer at the same salary and benefits.

See Flaherty v. Gas Research Inst. 31 F.3d 451, 456-57 (7th Cir. 1994). The Seventh

Circuit noted that other circuits have found adverse employment actions “in a [sic]

employer’s moving an employee’s office to an undesirable location, transferring an

employee to an isolated corner of the workplace, and requiring an employee to relocate

her personal files while forbidding her to use the firm’s stationary and support

services.” Id. (quoting Collins v. State of Illinois, 830 F.2d 692, 703 (7th Cir. 1987)).

We may affirm a judgment on any ground supported by the record, even if not 3

relied upon by the district court. See Maness v. Star-Kist Foods, Inc., 7 F.3d 704, 709

(8th Cir. 1993), cert. denied, 512 U.S. 1207 (1994).

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Appellant did not suffer the type of adverse employment action that

is necessary to establish a prima facie case of discrimination under Title

VII. Appellant offers no evidence to show that an exchange of her staff,

while her salary, benefits, responsibilities, title and even office

location remained the same, somehow materially altered the terms or

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conditions of her employment. Further, the placement of the notice in

appellant's file that discrimination is an unlawful employment practice did

not constitute an adverse employment action. This notice, which fairly

described the law, was given to the other employees at appellant's level

and simply reiterated what was already part of DSS policy and performance

appraisals, and was eventually deleted from the employees' files.

Accordingly, we conclude that appellant has failed to establish a prima

facie case of discrimination and we affirm the district court’s grant of

summary judgment in favor of appellees.3

BEAM, Circuit Judge, dissenting.

The ultimate determination of adverse employment action is a question

of fact for the jury. Davis v. City of Sioux City, 115 F.3d 1365, 1369

(8th Cir. 1997). I disagree with the court's conclusion that no reasonable

jury could find that Diane
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Ledergerber has suffered from an adverse employment action, and therefore

dissent. 

In Harlston, we properly shied away from allowing a plaintiff’s

subjective perception about a reassignment to control whether a change is

materially adverse. 37 F.3d at 382. I do not believe, however, that

Harlston stands for the proposition that an employer can avoid Title VII

liability by characterizing all changes in duties and treatment as

qualitative and, therefore, non-adverse. In Davis, the defendant argued

that the plaintiff's transfer to a different job at a higher salary was not

adverse. We observed that "[t]he jury apparently put more weight on

Davis’s evidence that the new position lacked supervisory status, had fewer

opportunities for salary increases, and offered Davis little opportunity

for advancement. The jury was free to credit this evidence . . . . " 115

F.3d at 1369. Ledergerber, like Davis, has presented sufficient evidence

from which a reasonable jury could find that she has suffered an adverse

employment action. 

The court views the only harm worked by Ledergerber's transfer as a

loss of status and prestige. First, I cannot accept the premise that being

identified as a racist by one's employer "cause[s] no materially

significant disadvantage." Harlston, 37 F.3d at 382. Furthermore, we have

previously held that, under certain circumstances, the loss of public

respect and stature can constitute adverse employment action. In Goodwin

v. Circuit Court of St. Louis County, Mo., 729 F.2d 541, 547 (8th Cir.

1984) the court held that a transfer, with the same pay, from a position

as a hearing officer to that of a staff attorney was adverse because the

new position was less prestigious. The loss of intangible status has been

deemed by other circuits, particularly in institutional employment settings

like the DFS, to be legally sufficient to state a claim of adverse

employment action. See, e.g., Bryson v. Chicago State Univ., 96 F.3d 912

(7th Cir. 1996) (loss of unofficial "in-house title" and membership on

university committees, without change in duties, rank or salary,

constitutes adverse employment action); De la Cruz v. New York City Human

Resources Admin., 82 F.3d 16 (2d Cir. 1996) (transfer from an elite

division to a less prestigious unit, even though two units are
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officially lateral, constitutes adverse employment action); Vojvodich v.

Lopez, 48 F.3d 879 (5th Cir. 1995) (in a section 1983 claim, transfer from

position of Narcotics Lieutenant to Communications/Dispatching Lieutenant

constitutes adverse employment action because new position was "less

prestigious" and "offered less job satisfaction"), cert. denied, 116 S. Ct.

169 (1995).

Moreover, loss of status is not the only detriment Ledergerber claims

to have suffered. There is evidence in the record that Ledergerber's new

subordinates were comprised of less desirable "problem employees" that the

other supervisors did not want on their staff. Appellant's App. at 136,

139-40. Ledergerber's new subordinates work in the "Claims and Restitution

Unit" rather than dealing with casework and applications, and this

substantive change has her in charge of employees in an area with which she

is not familiar. Appellant's App. at 136. Ledergerber reports that her

transfer has created the perception that she is a racist, which, in turn,

has resulted in more complaints by subordinates and has limited her

opportunities for promotion. Appellant's App. at 137, 140-41. Finally,

and perhaps most tellingly, when the caseworkers initially filed their

charges against Ledergerber, they requested that Ledergerber be "terminated

or transferred." Appellant's App. at 37 (emphasis added). From this, an

independent investigator used by DFS to investigate the original charges

of discrimination characterized the action taken against Ledergerber as

disciplinary. Appellant's App. at 107. Even internal departmental

correspondence refers to the shift in staff away from Ledergerber as

"corrective action for Ms. Ledergerber." Appellant's App. at 61 and 71. 

There is a controverted issue of fact as to whether Ledergerber

suffered an adverse employment action. It is not this court's function to

resolve fact questions. This case should be remanded for trial, and I

therefore respectfully dissent.
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A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.