* Pursuant to 5TH CIR. R. 47.5, the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

December 15, 2006

Charles R. Fulbruge III

Clerk

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

No. 05-51611

MICHAEL E. DESPRES; ET AL.,

Plaintiffs,

LAWRENCE DOYLE,

Plaintiff-Appellant,

versus

THE CITY OF SAN ANTONIO,

Defendant-Appellee.

Appeal from the United States District Court

for the Western District of Texas

(5:04-CV-150)

Before BARKSDALE, DEMOSS, and PRADO, Circuit Judges.

PER CURIAM:*

Summary judgment was awarded the City of San Antonio,

dismissing Officer Lawrence Doyle’s claim of retaliation under

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§

2000(e), et seq. At issue is whether, for summary-judgment

purposes, Officer Doyle sufficiently showed an adverse-employment

action.
2

Officer Doyle, an employee of the San Antonio Police

Department (SAPD), filed a complaint with the Equal Employment

Opportunity Commission based on: the San Antonio Police Chief’s

calling Officer Doyle and his fellow members of the Union

Bargaining Team (UBT) “lily white”; documents Officer Doyle found

at work characterizing him as “lily white”; and his and other UBT

members’ being removed and replaced by non-whites. Officer Doyle

claims the SAPD retaliated against him for filing the complaint by

counseling him, issuing a formal complaint notice requiring him to

obtain authorization for overtime in excess of two hours, and

subjecting him to special overtime rules not required of other

officers and which reduced his ability to earn overtime

compensation. 

Upon exhausting administrative requirements, Officer Doyle

filed this action. For a Title VII retaliation claim, Officer

Doyle must establish a prima facie case showing: (1) he engaged in

activity protected by Title VII; (2) his employer took an adverseemployment action against him; and (3) a causal connection exists

between the protected activity and the adverse-employment action.

E.g., Fabela v. Socorro Indep. Sch. Dist., 329 F.3d 409, 414 (5th

Cir. 2003). The City’s summary-judgment motion was granted on the

ground that, for summary-judgment purposes, Officer Doyle failed to

show an adverse-employment action pursuant to our precedent. 
3

Subsequent to the briefs being filed for this appeal, the

Supreme Court decided Burlington Northern & Santa Fe Ry. Co. v.

White, 126 S. Ct. 2405 (2006), which held the test for an adverseemployment action is whether “a reasonable employee would have

found the challenged action materially adverse, [meaning] ... it

well might have dissuaded a reasonable worker from making or

supporting a charge of discrimination”. Id. at 2415 (internal

quotes omitted). This standard differed from our precedent. See,

e.g., Mattern v. Eastman Kodak Co., 104 F.3d 702, 707 (5th Cir.),

cert. denied, 522 U.S. 932 (1997). Accordingly, we called for

supplemental briefs on that point.

Pursuant to this recent Supreme Court decision and the

parties’ briefs, we remand for reconsideration of the summaryjudgment motion, or for such other proceedings as may be

appropriate. On remand, in the light of this new standard for an

adverse-employment action, if the City continues to seek summary

judgment, the district court should consider whether additional

evidence should be received, including through additional

discovery, prior to ruling on the motion. 

VACATED AND REMANDED