United States Court of Appeals 

### FOR THE EIGHTH CIRCUIT

___________ No. 96-2395

___________ Diane Ledergerber, *
* Appellant, *
* v. * Appeal from the United State s District
* Cour t for the Western District o f Gary Stangler; Carmen Schultze, * Missouri.
* Appellees. *

___________ Submitted: January 17, 1997 Filed: September 8, 1997

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

___________ ROSS, Circuit Judge.

Diane Ledergerber (appellant), a Caucasian income maintenanc e superv isor with the Division of Family Services (DFS) of the Missour i Departmen t of Social Services (DSS), filed this action on February 24 , 1995. She alleged that Gary Stangler, director of DSS, and CarmenSchulze, director of DFS (appellees), discrimina ted against her on the basis of her
ra ce, in violation of Title VII, 42 U.S.C. § 2000e-2; 42 U.S.C. § 1981a , and that the y retaliated against her for opposing their alleged policy of affording deference to African-American employees, in violation of 4 2 U.S.C. § 2000e-

## TheHonorable Scott O. Wright, Senior United States District Judge for the 1 

## Western District of Missouri.
-2- 3; 42 U. S.C. § 1981a. The district court granted summary judgment i n 1 favor of the appellees. We affirm.

On March 25, 1993, sixteen African-American income maintenanc e casewo rkers jointly filed a charge of racial discrimination against DF S regarding hiring and evaluation practices, probationary procedures, an d genera l disparate treatment. Appellant’s name did not appear in thi s charge of discrimination. On July 20, 1993, three of these caseworker s filed a new charge of discrimination, this time asserting that appellan t had re taliated against them for filing the earlier discrimination charg e byse arching a complainant’s desk in her absence, selectively enforcin g office dress code against a complainant , and reprimanding complainants for ab usingbreak-time privileges, while ignoring infractions of othe r employees.

Af ter an investigation of the two discrimination charges, DS S dir ector Stangler found that hiring practices at the DFS office wer e fl awed, that caseworker case approval and probation were inconsistentl y applied, and that two of the six allegations of retaliation agains t appella nt were substantiated, including appellant’s decision to send on e compl ainant home for improper office attire and her reprimand of anothe r compla inant for failing to adhere to break-time policies. Stangle r recommended changes in hiring, probatio n, and case approval practices and mediat ionof 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 thei r caseworkers were replaced with a different staff of four income ma intenance superv isors and their caseworkers. It is undisputed that appellant’ s position as an Income Maintenance Supervisor III remained

## -3-

unchan ged, and that her basic responsibilities and staff size remaine d substantially the same.
Appellant subsequently file d suit, asserting that the replacement of her staff and the placement in her file of a statement that discriminatory practi ces would not be tolerated constituted discrimination on the basi s of her ra ce, as well as retaliation against her for opposing appellees ’ al legedpolicy of giving deference to African-American employees. Th e district court determined that appellant had established a prima f acie case of discrimination, but ultimately concluded that appellant’s claim mus t fail because appellant was unable to show that the appellees’ act ions were taken on the basis of race or retaliation.

In reviewi ng a grant of summary judgment, this court applies th e same standar d as the district court and views the facts in the light most favorable to the non-moving party, giving that party the benefit of al l reasonable inferences to be drawn from those facts. Harlston v. McDonnell Douglas Corp. , 37 F.3d 379, 382 (8th Cir. 1994).

ATitle VI I plaintiff has the initial burden of establishing by a preponderanc e of the evidence a prima facie case of discrimination. Only upo nthis prima facie showing does the burden of production shift to th e employe r to articulate some legitimate, nondiscriminatory reason for th e employm ent action at issue. If the employer carries this burden o f production, the burden shifts back to t he 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 establishin g a prima facie
case o f discrimination or retaliation, appellant was required to show , am ong other things, that she suffered an adverse employment action tha t affected the terms or conditions of her employment. Harlston , 37 F.3d at 382. The di strict court believed that appellant satisfied this burden by producing evidence that she suffered a loss of status and

## -4-

prestige wit h 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 actio n complained o f may have had a tangential effect on her employment, it did not ri se to the level of an ultimate employment decision intended to b e ac tionable under Title VII. In Harlston , 37 F.3d at 382, we stated tha t “[c]ha nges in duties or working conditions that cause no materiall y signi ficant disadvantage . . . are insufficient to establish the advers e conduc t required to make a prima facie case.” There, we held that a secretary’s reassignment to a different position without any reduction in title, sa lary or benefits, even though the new position involved fewe r secre tarial duties and was more stressful, did not constitute an advers e empl oyment action. We stated that “[t]his describes nothing ‘mor e disrup tive than a mere inconvenience or an alteration of jo b responsibili ties.’” Id . (quoting Crady v. Liberty Nat’l Bank & Trust Co. , 993 F.2d 132, 136 (7th Cir. 1993)). See also Flaherty v. Gas Researc h 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, benefi ts and level of responsibility remained the same); Spring v

. Sheboygan Area Sch. Dist. , 865 F.2d 883, 886 (7th Cir. 1989) (findin g “publ ic humiliation” is not sufficient to establish age discriminatio n because “public perceptions were not a term or condition of [th e plaintiff’s] employment”).

The clear trend of authority is to hold that a “ purelylatera l transfer, th at is, a transfer that does not involve a demotion in form or substance , cannot rise to the level of a materially adverse employmen t action.” Williams v. Bristol-Meyers Squibb Co. , 85 F.3d 270, 274 (7th Cir. 1996) (empha sis in original). A transfer involving only minor changes in working conditions and no reduction in pay or benefits will not constitute an adverse e mployment action, “[o]therwise every trivial personnel action that an irri table . . . 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 requir ing an employee to relocate herpersonal 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 Manessv. Star-Kist Foods, Inc. , 7 F.3d 704, 709 (8th Cir. 1993), cert. denied , 512 U.S. 1207 (1994).
-5- Appellant did not suffer the type of adverse employment action that is necessary to establish a prima facie case of discrimination under Title VII. Appell ant offers no evidence to show that an exchange of her staff, while her salary, benefits, responsibilities, title and even offic e location remained the same, somehow materially altered the terms o r 2
con ditions of her employment. Further, the placement of the notice i n appellant's file that discrimination is an unlawful employment pra ctice did
no t constitute an adverse employment action. This notice, which fairl y desc ribedthe law, was given to the other employees at appellant's leve l and simply r eiterated what was already part of DSS policy and performance appr aisals, and was eventually deleted from the employees' files

. Ac cordingly, we conclude that appellant has failed to establish a prim a faci e case of discrimination and we affirm the district court’s grant o f summary judgment in favor of appellees. 3
BEAM, Circuit Judge, dissenting.
The ultimate determination of adverse employment actio n is a question of fact for the jury. Davis v. City of Sioux City , 115 F.3d 1365, 136 9 (8th Cir. 1997). I disagree with the court's conclusion that no r easonable jury could find that Diane

## -6-

Ledergerber has suffered from an adverse employment action, and therefore dissent. In Harlston , we properly shied away from allowing a plaintiff’ s subjective p erception about a reassignment to control whether a change is mater iallyadverse. 37 F.3d at 382. I do not believe, however, tha t Harl stonstands for the proposition that an employer can avoid Title VI I liabil ityby characterizing all changes in duties and treatment a s 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 ad verse. We observed that "[t]he jury apparently put more weight o n Davis’s evidence that the new position lacked supervisory status, had fewer opportu nities for salary increases, and offered Davis little opportunit y for advancem ent. The jury was free to credit this evidence . . . . " 115 F.3d at 1369. Ledergerber, like Davis , has presented sufficient evidence fro mwhich a reasonable jury could find that she has suffered an advers e 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 t hat being identi fiedas a racist by one's employer "cause[s] no materiall y significant disadvantage." Harlston , 37 F.3d at 382. Furthermore , we have previo uslyheld that, under certain circumstances, the loss of publi c respect and stature can constitute adverse employment action. In Goodwin
v. C ircuit Court of St. Louis County, Mo. , 729 F.2d 541, 547 (8th Cir

. 19 84) the court held that a transfer, with the same pay, from a positio n as a hearing officer to that of a staff attorney was adverse because th e 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 advers e employment a ction. See , e.g. , Bryson v. Chicago State Univ. , 96 F.3d 912 (7th Cir. 1996) (loss of unofficial "in-house title" and membership o n univers itycommittees, without change in duties, rank or salary , constitutes adverse employment action); De la Cruz v. New York City Human Resourc es Admin. , 82 F.3d 16 (2d Cir. 1996) (transfer from an elit e division to a less prestigious unit, even though two units are

## -7-

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
con stitutes adverse employment action because new position was "les s prestigious" and "offered less job satisfaction"), cert. denied , 1 16 S. Ct. 169 (1995).
Moreover, loss of status is not the only detriment Led ergerber claims to have suff ered. There is evidence in the record that Ledergerber's new subordinates were comprised of less des irable "problem employees" that the oth er supervisors did not want on their staff. Appellant's App. at 136 , 139-40. Ledergerber's new subordinates work in the "Claims and Re stitution Unit" rather than dealing with casework and applications, and thi s 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 he r transfer has created the perception that she is a racist, which, in turn, has resulted in more complaints by subordinates and has limited he r oppor tunities for promotion. Appellant's App. at 137, 140-41. Finally , and pe rhaps most tellingly, when the caseworkers initially filed thei r charges against Ledergerber, they requested that Ledergerber be "t erminated or transferr ed ." Appellant's App. at 37 (emphasis added). From this, an indepe ndent investigator used by DFS to investigate the original charge s of discrimination characterized the action taken against Ledergerber a s discip linary. Appellant's App. at 107. Even internal departmenta l correspo ndence refers to the shift in staff away from Ledergerber a s "corrective action for Ms. Ledergerber." Appellant's App. at 61 and 71.

There is a controverted issue of fact as to whether Ledergerbe r suffered an adverse employment action. It is not this court's function to resolve f act questions. This case should be remanded for trial, and I therefore respectfully dissent.

## -8- A true copy.

Attest:

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