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FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

MAR 26, 2001

THOMAS K. KAHN

CLERK

*

Honorable W.B. Hand, U.S. District Judge for the Southern District of Alabama, sitting

by designation.

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

 

No. 00-10305

 

D. C. Docket No. 98-08315-CV-FAM

MACK DAVIS,

Plaintiff-Appellant,

versus

TOWN OF LAKE PARK, FLORIDA, 

a Florida municipal corporation,

Defendant-Appellee.

 

Appeal from the United States District Court

for the Southern District of Florida

 

(March 26, 2001)

Before CARNES and MARCUS, Circuit Judges, and HAND*

, District Judge.

MARCUS, Circuit Judge:
2

Plaintiff Mack Davis appeals the district court’s grant of Defendant Town of

Lake Park’s motion for judgment as a matter of law on his Title VII race

discrimination claim. Davis, an African-American police officer in the Town,

alleges that he suffered adverse employment action based on race in the form of

two corrective job performance memos placed in his personnel file and two

instances where he was temporarily removed as the designated officer-in-charge

(“OIC”). The jury returned a verdict for Davis and awarded $1.00 in nominal

damages. The district court, however, set aside the verdict and granted the Town’s

motion for judgment as a matter of law, concluding that no reasonable jury could

have found adverse employment action on this record. Because we agree that

Davis failed to prove the kind of serious, material change to the terms, conditions,

or privileges of his employment required to obtain relief under Title VII’s antidiscrimination clause, we affirm.

I.

Davis is the only black police officer in Lake Park, a small community near

West Palm Beach, Florida. The department has approximately 20 road patrol

officers, plus three sergeants, two lieutenants, and a chief (Jeffrey Lindskoog). The

district court’s opinion amply sets out the Town’s extensive efforts to bring Davis

into the police force. Davis was hired in November 1992, and remains a police
3

officer there. His performance reviews have been excellent or no worse than

satisfactory, and his supervisors have recommended him for several awards. He

has served many times as one of the department’s Field Training Officers

(“FTOs”), responsible for teaching new officers the rules and regulations of the

department.

In or about January 1996 Davis was selected by his then-shift sergeant,

Patricia Gordon, to serve as OIC in her absence. The OIC is the road patrol officer

who fills in for the shift sergeant when that sergeant has a day off, takes a vacation,

or otherwise is unavailable. The OIC, when acting in that capacity, is to be

accorded the same deference and respect as the sergeant. The OIC designation

carries no additional pay or benefits, and is only temporary. It usually, although

not always, goes to the most senior officer on the shift.

On October 31, 1996, Davis received a memorandum from Lieutenant Jules

Barone entitled “Failure to Follow Department Requirements (S.O.P.).” The

memo discussed Davis’s alleged failure to comply with certain departmental

requirements regarding “turning in paperwork on time and keeping your mailbox

clean.” It continued:

What makes this situation even more unacceptable is your position as

a field training officer. How can you possibly expect trainees under

your direction to follow instructions when you ignore a very basic

aspect of your job. I expect more from you. As a result, any future
4

leave requests will not be granted until all work-related paper work is

turned in or you receive a waiver from your supervisor or me.

Davis did not suffer any repercussions from that memo; indeed, a week later, he

received a performance evaluation -- prepared by Gordon, and approved by Barone

and Chief Lindskoog -- of excellent, and an attendant pay raise. 

On December 13, 1996, Gordon elected to designate another officer, Larry

Wood, to serve as OIC while she was away on vacation. Gordon testified that she

had noticed a “slump” in Davis’s performance, and that she felt Davis needed a

break from the additional duties imposed by being both OIC and an FTO. Gordon

later re-designated Davis to serve as OIC. On January 24, 1997, Davis was again

replaced as the designated OIC, this time (according to Davis) based on a decision

by Barone that Davis’s recent performance was deficient. Gordon concurred in

Barone’s decision, and designated an officer named Crowell to be OIC instead. 

Nevertheless, since that time, Davis has served as OIC on various occasions,

including at the time of trial.

Meanwhile, on February 5, 1997, Davis received another job performance 

memo from Barone. The initial version of that memo was quite harsh in its

criticism of Davis’s recent performance, and identified several specific instances of

unacceptable conduct. The memo was placed in Davis’s personnel file, prompting

Davis to file a union grievance. In response, the department substituted a
5

somewhat softer, revised version of this memo, which stated that Davis’s level of

performance was “unacceptable for any officer, let alone one who is a field training

officer and has served as an OIC.” The memo added that it was meant to serve “as

a warning that performance of a like nature may result in other department

actions.” The revised version replaced the initial version in Davis’s personnel file,

and was put there with the proviso that it would be removed on February 8, 1998,

if the performance problems did not reoccur. The union, notably, did not pursue

the matter further. Although the personnel file produced during discovery still

contained the revised memo, in July 1999 Chief Lindskoog testified at trial --

without contradiction -- that the memo had been removed by that time.

II.

It is undisputed that Davis did not suffer any reduction in salary, loss of

benefits, denial of promotions, workplace reassignment, transfer, or change in

permanent job title as a result of these incidents. Nevertheless, on May 14, 1998,

Davis filed suit against his employer in the Southern District of Florida, alleging

race discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §

2000e-1, et seq., the Florida Civil Rights Act, and 42 U.S.C. § 1981. The case was

originally assigned to U.S. District Judge Federico Moreno, who denied the

Town’s motion for summary judgment. In so doing, Judge Moreno rejected the
6

argument that Davis did not suffer adverse employment action. The case was

subsequently reassigned to U.S. District Judge Donald Middlebrooks. 

A jury trial was held on July 26-28, 1999. At trial the Town moved for

judgment as a matter of law at the close of Davis’s case as well as after the close of

the evidence. On both occasions the district court reserved ruling. On July 28, the

jury returned a verdict in favor of Davis, but awarded him only $1.00 in nominal

damages. Before rendering its verdict the jury had submitted to the district judge a

note stating: “[W]e appear to be deadlocked. Can you assist? What do we do

next?” The district judge responded by ordering the jury to deliberate further.

In a lengthy order dated December 22, 1999, the district court granted the

Town’s motion for judgment as a matter of law and thereby set aside the jury’s

verdict. After a detailed discussion of the evolution of the adverse employment

action requirement in Title VII cases, the court concluded that the incidents

complained of by Davis did not, viewed individually or collectively, amount to

adverse action. The district court emphasized that Davis did not suffer any

discipline for these incidents, did not lose any pay or benefits, and continued to

receive excellent or satisfactory performance reviews with attendant increases in

salary. With respect to the February 5, 1997, job performance memo, the court

particularly emphasized that the memo was not a formal reprimand, and that
1

Davis argues that the law of the case doctrine required Judge Middlebrooks to adhere to

Judge Moreno’s earlier ruling at the summary judgment stage that the issues of adverse

employment action and prima facie case were questions of fact for the jury. Davis’s argument is

plainly incorrect. Law of the case does not apply in this situation because Judge Middlebrooks

based his post-trial order on a different record than did Judge Moreno when addressing summary

judgment. See United States v. Williams, 728 F.2d 1402, 1406 (11th Cir. 1984) (law of the case

doctrine “is flexible, and a court’s previous rulings may be reconsidered as long as the case

remains within the jurisdiction of the district court”); United States v. Horton, 622 F.2d 144, 148

(5th Cir. 1980) (holding that the trial court properly reconsidered motion for summary judgment

because the production of reports, admissions, affidavits, and other record material during the

course of proceedings had clarified and resolved questions of material fact on several issues).

7

according to Chief Lindskoog it had already been removed from Davis’s personnel

file. In any event, the court wrote, “[m]emoranda of reprimand or counseling that

amount to no more than a mere scolding, without any following disciplinary action,

do not rise to the level of adverse employment actions sufficient to satisfy the

requirements of Title VII.” With respect to the brief removals from the OIC

designation, the district court wrote that “courts have uniformly held that changes

in assignments or work-related duties do not amount to actionable adverse

employment action if unaccompanied by a decrease in salary.” Finally, as an

additional ground for entering judgment in the Town’s favor, the court concluded

that Davis had failed to prove that he was treated differently than any similarlysituated white employees, and thus failed on that ground as well to establish a

prima facie case under Title VII. This appeal followed.1

III.
8

The standard of review is well-settled. As set forth in Tidwell v. Carter

Products, 135 F.3d 1422 (11th Cir. 1998):

A district court’s denial of a defendant’s motion for judgment

as a matter of law is reviewed de novo, entailing the application of the

same standards used by the district court. Dade County v. Alvarez,

124 F.3d 1380, 1383 (11th Cir. 1997). Those standards require the

consideration of “whether the evidence presents a sufficient

disagreement to require submission to a jury or whether it is so

one-sided that one party must prevail as a matter of law.” Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S. Ct. 2505, 2512, 91

L. Ed. 2d 202 (1986). All evidence and inferences are considered in a

light most favorable to the nonmoving party. Carter v. City of Miami,

870 F.2d 578, 581 (11th Cir. 1989). 

If the facts and inferences point overwhelmingly in

favor of one party, such that reasonable people could not

arrive at a contrary verdict, then the motion was properly

granted. Conversely, if there is substantial evidence

opposed to the motion such that reasonable people, in the

exercise of impartial judgment, might reach differing

conclusions, then such a motion was due to be denied and

the case was properly submitted to the jury.

Id. (footnotes omitted). The nonmoving party must provide more than

a mere scintilla of evidence to survive a motion for judgment as a

matter of law; “there must be a substantial conflict in evidence to

support a jury question.” Id. Accordingly, we must determine

whether reasonable jurors could have concluded as this jury did based

on the presented evidence. Quick v. Peoples Bank, 993 F.2d 793, 797

(11th Cir. 1993).

Id. at 1425. We review the district court’s entry of judgment as a matter of law

against these familiar standards.

IV.
9

The primary issue in this appeal is whether the district court erred by finding

that the alleged adverse employment actions, viewed individually or collectively,

were insufficient as a matter of law to support relief under Title VII’s antidiscrimination clause. Davis argues that, viewing the evidence in the light most

favorable to him, a reasonable jury could have found that the incidents he suffered

(the two memos regarding his inadequate performance and the two removals from

the OIC designation) constituted adverse employment action sufficient to support

relief under Title VII. He contends that the memos are tantamount to reprimands,

which he asserts are always deemed actionable under Title VII. Moreover, he

contends, the presence of the revised memo in his personnel file jeopardizes his

career prospects as a police officer. With respect to the OIC designation, Davis

contends that the two occasions on which he was removed constituted

“demotions,” and in any event are actionable because they deprived him of

supervisory experience that could have yielded future benefits. The Town disputes

all of these propositions, and repeatedly emphasizes that at no point did Davis

suffer any formal discipline or economic injury.

The relevant provision of Title VII prohibits discrimination with respect to

an employee’s “compensation, terms, conditions, or privileges of employment.” 

42 U.S.C. § 2000e-2(a). Courts have uniformly read this language to require a
10

plaintiff suing under § 2000e-2(a) to establish, as part of his prima facie case, that

he suffered so-called “adverse employment action.” See Merriweather v. Alabama

Dept. of Pub. Safety, 17 F. Supp. 2d 1260, 1274 (M.D. Ala. 1998) (a “term or

condition of employment may be said to have been affected if there is a

‘demonstrable adverse impact . . .’”), aff’d, 199 F.3d 443 (11th Cir. 1999); see also

Allen v. Michigan Dep’t of Corr., 165 F.3d 405, 410 (6th Cir. 1999) (“In order to

set forth a claim of racial discrimination, a plaintiff must show that he has suffered

an adverse employment action[.]”); Harlston v. McDonnell Douglas Corp., 37 F.3d

379, 382 (8th Cir. 1994) (finding that plaintiff failed to prove “the adverse conduct

required to make a prima facie case”). The adverse action requirement is not

unique to Title VII’s anti-discrimination clause. It has been imposed in cases

under Title VII’s retaliation clause, even though that provision is not limited to

unlawful conduct with respect to the “terms, conditions, or privileges of

employment.” See Bass v. Board of County Comm’ns, No. 99-10579, slip op. at

1477-78 (11th Cir. Feb. 21, 2001); Gupta v. Florida Bd. of Regents, 212 F.3d 571,

587 (11th Cir. 2000), cert. denied, 121 S. Ct. 772 (2001); Wideman v. Wal-Mart

Stores, Inc., 141 F.3d 1453, 1456 (11th Cir. 1998); Wu v. Thomas, 996 F.2d 271,

273-74 (11th Cir. 1993). Adverse action is also a requirement in other

employment discrimination cases. See Doe v. Dekalb County Sch. Dist., 145 F.3d
11

1441, 1452 (11th Cir. 1998) (noting in ADA case the “requirement that a plaintiff

[] show, as part of his prima facie case, that he has suffered an adverse employment

action”); McCabe v. Sharrett, 12 F.3d 1558, 1563 (11th Cir. 1994) (“For a public

employee to establish that an employment action has infringed a constitutional

right the employee must also demonstrate that he or she has suffered some sort of

adverse employment action . . . .”).

We have never adopted a bright-line test for what kind of effect on the

plaintiff’s “terms, conditions, or privileges” of employment the alleged

discrimination must have for it to be actionable; nor would such a rigid test be

proper. See, e.g., Gupta, 212 F.3d at 586 (“Whether an action is sufficient to

constitute an adverse employment action for purposes of a retaliation claim must

be determined on a case-by-case basis.”). It is clear, however, that not all conduct

by an employer negatively affecting an employee constitutes adverse employment

action. See Wideman, 141 F.3d at 1456 (“we do not doubt that there is some

threshold level of substantiality that must be met for unlawful discrimination to be

cognizable”); Wu, 996 F.2d at 273-74 (although we “have never defined what this

general phrase [adverse employment action] means,” none of our prior decisions

“establish the proposition that every unkind act, even those without economic

consequences, can violate Title VII”); Merriweather, 17 F. Supp. 2d at 1274 (a
12

“term or condition of employment may be said to have been affected if there is a

‘demonstrable adverse impact . . .’”). This limitation is consistent with the basic

principle that “Title VII[ ] is neither a general civility code nor a statute making

actionable the ‘ordinary tribulations of the workplace.’” Gupta, 212 F.3d at 587

(quoting Anderson v. Coors Brewing Co., 181 F.3d 1171, 1178 (10th Cir. 1999)).

Courts have used different words to define the “threshold level of

substantiality” required by Title VII. Wideman, 141 F.3d at 1456. In Burlington

Industries, Inc. v. Ellerth, 524 U.S. 742, 118 S. Ct. 2257 (1998), for example, a

case primarily discussing a supervisor’s vicarious liability for sexual harassment

under Title VII, the Supreme Court suggested that some kind of significantly

adverse employment action is necessary to prove an employer’s Title VII liability:

Every Federal Court of Appeals to have considered the question has

found vicarious liability when a discriminatory act results in a tangible

employment action. . . . The concept of a tangible employment action

appears in numerous cases in the Courts of Appeals discussing claims

involving race, age, and national origin discrimination, as well as sex

discrimination. Without endorsing the specific results of those

decisions, we think it prudent to import the concept of a tangible

employment action for resolution of the vicarious liability issue we

consider here. A tangible employment action constitutes a significant

change in employment status, such as hiring, firing, failing to

promote, reassignment with significantly different responsibilities, or

a decision causing a significant change in benefits.

524 U.S. at 760-61, 118 S. Ct. at 2268 (emphasis added) (citation omitted). Other

courts, rather than using the word “significant,” have used the word “material.” 
13

See, e.g., Allen, 165 F.3d at 410 (adverse employment action requirement means

that the employee “must establish that he has suffered a ‘materially adverse’

change in the terms or conditions of employment because of the employer’s

actions”); Harlston, 37 F.3d at 382 (“[c]hanges in duties or working conditions that

cause no materially significant disadvantage” are not actionable); see also Crady v.

Liberty Nat’l Bank & Trust Co., 993 F.2d 132, 136 (7th Cir. 1993) (requiring

under parallel provisions of ADEA a “materially adverse change” in employment

status). Still other courts have spoken of requiring the plaintiff to prove “‘serious

and tangible’” effects from the employer’s action. See Bass, slip op. at 1478

(quoting Robinson v. City of Pittsburgh, 120 F.3d 1286, 1300 (3d Cir. 1997)

(discussing Title VII’s retaliation clause)).

As applied, these standards are essentially interchangeable: Whatever the

benchmark, it is clear that to support a claim under Title VII’s anti-discrimination

clause the employer’s action must impact the “terms, conditions, or privileges” of

the plaintiff’s job in a real and demonstrable way. Although the statute does not

require proof of direct economic consequences in all cases, the asserted impact

cannot be speculative and must at least have a tangible adverse effect on the

plaintiff’s employment. We therefore hold that, to prove adverse employment

action in a case under Title VII’s anti-discrimination clause, an employee must
2

Davis cites several times to broad language from a former Fifth Circuit decision, Rogers

v. EEOC, 454 F.2d 234, 238 (5th Cir. 1971). Rogers was not addressing the standard for adverse

employment action, considering instead an allegation of hostile work environment. The court

certainly did not hold, as Davis contends, that “loss of intangible benefits of employment, like

prestige, responsibility, and opportunity for growth, are [always] actionable in claims of

discrimination.”

14

show a serious and material change in the terms, conditions, or privileges of

employment. Moreover, the employee’s subjective view of the significance and

adversity of the employer’s action is not controlling; the employment action must

be materially adverse as viewed by a reasonable person in the circumstances. See

Doe, 145 F.3d at 1453 (test for adverse employment action in ADA case patterned

after Title VII is whether “a reasonable person in [the employee’s] position would

have found [the alleged alteration of the terms and conditions of employment] to

be adverse under all the facts and circumstances”).2

 

Davis’s claim is predicated on two kinds of employer acts that frequently are

alleged as adverse employment action even though they do not often meet the

statutory threshold. First, Davis relies upon the negative job performance

memoranda placed in his file. Neither of the memos at issue caused him any

present or foreseeable future economic injury; he maintains, however, that these

memoranda were unwarranted, diminished his prestige and self-esteem, and

potentially may interfere with (unspecified and unexplored) future job prospects. 

Second, Davis relies upon the changes in his work assignments -- specifically, his
15

two “demotions” from the OIC designation. Again, neither incident caused any

economic injury; regardless, says Davis, it is enough that they diminished his

prestige and deprived him of experience which might make him more likely to

obtain (as yet unsought) promotions in the future. As we discuss, Congress simply

did not intend for Title VII to be implicated where so comparatively little is at

stake.

A.

We do not view either of the job performance memoranda as constituting

adverse employment action. The October 31, 1996, memo, as noted above, was

not a formal reprimand under the terms of the Town’s “progressive discipline”

structure, but rather was a “counseling memorandum” expressing concern and

criticism by Barone over one aspect of Davis’s recent performance. Although the

memo described the improper conduct (failing to turn in certain documents) as

“unacceptable” and accused Davis of “ignor[ing] a very basic aspect of your job,”

the memo concluded simply by saying that “any future leave requests will not be

granted until all work-related paper work is turned in or you receive a waiver from

your supervisor or me.” It is undisputed that Davis did not suffer any tangible

consequence from this memo, in the form of a loss of pay or benefits or further

discipline. Indeed, shortly after this memo, Davis received his annual evaluation
16

with an overall rating of “excellent” and thereby received a contractually-mandated

salary increase, further suggesting that the memo did not have a material impact on

the terms and conditions of his employment. Viewed in isolation, the October 31

memo is not actionable under Title VII.

The later job performance memo (issued February 5, 1997, and revised

thereafter) is likewise not actionable. Although this memo was sterner than its

predecessor, it is still not alleged to be a reprimand under the Town’s discipline

scheme, and again, Davis did not suffer any loss of pay or benefits, or even a

negative annual performance evaluation, as a result of it. The revised memo

described several episodes that Barone considered “unacceptable” and warned that

“performance of a like nature may result in other departmental actions,” but

categorized these events as only a “cause[] for concern” that could be resolved with

improved performance in the future. 

Davis’s primary objection is that this revised memo was retained in his

personnel file, and thus could jeopardize his chances of obtaining a different

position in the future within the Town or elsewhere. As Davis sees it, a police

officer’s personnel file is especially important as a record of the officer’s

performance and a resource upon which potential future employers will judge him. 

His view was substantiated by the trial testimony of several witnesses.
17

There are several difficulties with this argument. First, courts are wisely

reluctant to treat job performance memoranda as actionable under Title VII where

they do not trigger any more tangible form of adverse action such as a loss in

benefits, ineligibility for promotional opportunities, or more formal discipline. In

Merriweather, for example, we affirmed the district court’s finding that a written

counseling statement that did not constitute a reprimand was not actionable in a

Title VII retaliation claim. The district court’s analysis of the issue is pertinent

here:

Merriweather complains that she received a written counseling

statement on November 6, 1996 for conduct she did not commit in

retaliation for [protected conduct]. Defendants contest whether such

counseling rose to the level of adverse employment action and

whether Merriweather can establish a causal connection between her

exercise of protected speech and the counseling. . . .

In the present case, Defendants appear to contend that the

written counseling did not amount to even a non-threatening written

reprimand. Defendants contend that a warning or counseling is the

lowest grade of discipline in the State system, does not subtract points

from an employee’s evaluation, does not affect an employee’s salary,

and is not punitive. Merriweather has not alleged that this written

counseling has had any adverse impact on her employment. She has

not produced any evidence to support that she has been fired, demoted

or denied any pay increase because of the counseling. Nor have any of

the terms of her employment been adversely affected because of the

counseling. This court therefore finds that the written counseling does

not constitute adverse employment action, and that Merriweather has

failed to state a prima facie case of retaliation based upon the written

counseling.
18

17 F. Supp. 2d at 1275 (emphasis added). 

Other courts have taken a similar approach, finding that criticisms of an

employee’s job performance -- written or oral -- that do not lead to tangible job

consequences will rarely form a permissible predicate for a Title VII suit. See,

e.g., Allen, 165 F.3d at 409-10 (counseling memoranda, unlike denial of

promotion, did not constitute “materially adverse” employment action even though

motivated by racial animus); Sweeney v. West, 149 F.3d 550, 556 (7th Cir. 1998)

(counseling memoranda and “negative performance evaluations, standing alone,

cannot constitute an adverse employment action”); Rabinowitz v. Pena, 89 F.3d

482, 488 (7th Cir. 1996) (rejecting proposition that “a low performance rating is

always an adverse employment action”); Meredith v. Beech Aircraft Corp., 18 F.3d

890, 896 (10th Cir. 1994) (allegedly unjustified negative performance evaluation

held not actionable); Milburn v. West, 854 F. Supp. 1, 14 (D.D.C. 1994)

(memorandum “for the record” that recounted employee misconduct and requested

more formal discipline against employee deemed not actionable even though it was

placed in employee’s permanent file), summ. aff’d sub nom., Walker v. West, No.

94-5228 (D.C. Cir. Feb. 7, 1995) (per curiam); Nelson v. University of Maine Sys.,

923 F. Supp. 275, 282-83 (D. Me. 1996) (“mere criticism, or counseling, of an

employee” is not actionable); Coney v. Department of Human Res., 787 F. Supp.
3

Likewise, in Graham v. State Farm Mutual Insurance Co., 193 F.3d 1274, 1283 (11th

Cir. 1999) (per curiam), we found that a counseling memo expressing concern with plaintiff’s

improper absences and warning of possible ramifications “simply did not meet the ‘threshold

level of substantiality’ required by the Eleventh Circuit in Wideman.” In so doing, we stressed

that the “plaintiff did not suffer any repercussions” from the memo, and that “[i]n such

circumstances, courts have generally found no adverse employment action.” Id. Although we

remarked in dicta that “undeserved negative job evaluations” may be actionable under Title

VII’s retaliation clause, Graham did not address Title VII’s anti-discrimination clause. 

Moreover, Wideman, the sole opinion cited for that proposition, did not hold that negative job

evaluations are actionable; indeed, it emphasized that “there is some level of substantiality that

must be met for unlawful discrimination to be cognizable under the anti-retaliation clause.” 141

F.3d at 1456. 

19

1434, 1442 (M.D. Ga. 1992) (non-threatening written reprimand, later removed

from employee’s personnel file, held not actionable); Medwid v. Baker, 752 F.

Supp. 125, 137 (S.D.N.Y. 1990) (counseling of employee for performance

deficiency not materially adverse action).3

Given that Congress in § 2000e-2(a) has expressly limited the types of

employer actions which may give rise to a Title VII discrimination claim, such a

claim rarely may be predicated merely on employer’s allegedly unfounded

criticism of an employee’s job performance, where that criticism has no tangible

impact on the terms, conditions, or privileges of employment. An employee who

receives criticism or a negative evaluation may lose self-esteem and conceivably

may suffer a loss of prestige in the eyes of others who come to be aware of the

evaluation. But the protections of Title VII simply do not extend to “‘everything

that makes an employee unhappy.’” Robinson, 120 F.3d at 1300 (holding that oral
4

Davis cites dicta in Doe, an ADA case, to assert that a loss of prestige is by itself

sufficient to state a claim. Doe does not hold that an asserted loss of prestige can transform

employer conduct which does not alter the “terms, conditions, or privileges” of the plaintiff’s

employment into a proper basis for suit under Title VII’s anti-discrimination clause. Indeed,

20

reprimands were not actionable under Title VII’s retaliation clause and adding that

“[o]therwise, minor and even trivial employment actions that ‘an irritable,

chip-on-the-shoulder employee did not like would form the basis of a

discrimination suit.’”) (quoting Smart v. Ball State University, 89 F.3d 437, 441

(7th Cir. 1996)). 

Employer criticism, like employer praise, is an ordinary and appropriate

feature of the workplace. Expanding the scope of Title VII to permit

discrimination lawsuits predicated only on unwelcome day-to-day critiques and

assertedly unjustified negative evaluations would threaten the flow of

communication between employees and supervisors and limit an employer’s ability

to maintain and improve job performance. Federal courts ought not be put in the

position of monitoring and second-guessing the feedback that an employer gives,

and should be encouraged to give, an employee. Simply put, the loss of prestige or

self-esteem felt by an employee who receives what he believes to be unwarranted

job criticism or performance review will rarely -- without more -- establish the

adverse action necessary to pursue a claim under Title VII’s anti-discrimination

clause.4
discussing the job transfer at issue in that case, we stressed that “it is not enough that a transfer

imposes some de minimis inconvenience or alteration of responsibilities.” Id. at 1453.

5

Davis contends, without dispute, that by law this document cannot be destroyed, and

remains theoretically accessible to potential future employers and members of the public under

Florida’s public records laws. The significance of that information is unclear, however. If

indeed the document has been eliminated from Davis’s personnel records, we cannot conceive

(and have not been told by the parties) how that document might nevertheless someday be

circulated to potential future employers. In any event, the important point here is that Davis has

made no showing on this record that the memos at issue had any effect, let alone tangible effect,

on him beyond assertedly diminishing his prestige and self-esteem. Moreover, the fact that the

allegedly unjustified evaluations are written as opposed to oral, and hence recorded in more

permanent fashion, does not change this fundamental defect in Davis’s argument. 

21

Second, to the extent Davis’s concern is that the revised memo became part

of his personnel file, the undisputed evidence at trial established that the memo has

now been removed. The memo may not have been removed by the promised date

(February 5, 1998), but Chief Lindskoog testified without contradiction at trial in

July 1998 that it had been removed by that point. We are not aware of any record

evidence establishing that the inclusion of the memo in Davis’s personnel file

between February 1997 and no later than July 1999 affected his job prospects

within or beyond the Town in any way.5

 There is no testimony, for example,

suggesting that Davis was denied a promotion in the Town or passed over for a job

elsewhere due to the presence of that memo in his file. Nor is there any evidence

that the contents of the memo (or the October 31 memo, for that matter) were

disclosed to other officers. Accordingly, Davis cannot show any tangible

consequences from the memo. 
22

In any event, this kind of allegation -- that the employer’s criticism or

negative evalution may affect the employee’s prospects -- does little to advance

Davis’s claim even if true. Any job criticism or negative job review carries with it

the possibility that the employee’s future prospects may be prejudiced if that

information is disclosed. A negative evaluation that otherwise would not be

actionable will rarely, if ever, become actionable merely because the employee

comes forward with evidence that his future prospects have been or will be

hindered as a result.

B.

The other adverse actions alleged by Davis concern the two instances when

he was briefly “removed” as the designated Officer-in-Charge. Davis attempts to

cast these incidents as tantamount to a demotion, which clearly may be actionable

under Title VII, by characterizing his appointments as OIC as a promotion. 

Alternatively, Davis alleges that these incidents altered his work assignments, a

step which some courts have said may constitute adverse employment action if the

change in job responsibilities is substantial.

Viewing the OIC designation as a promotion, so that even a brief removal

from that designation constitutes a demotion actionable under Title VII, is not
6

The OIC designation is not deemed a promotion under the Town’s code or personnel

policies. Davis makes much of the fact that in its summary judgment papers to the district court

the Town’s attorneys referred to the process by which a road patrol officer is “promoted” to OIC. 

The Town has since retreated from that presumably inadvertent description, and we do not attach

great importance to it, especially as it was made in the context of the Town arguing that the

removals from the OIC designation cannot be deemed adverse employment actions.

23

persuasive.6 The OIC designation is, by definition, ephemeral: an officer is not

permanently named the OIC for any given shift, but rather that determination is

made on a case-by-case basis by the relevant supervisory officials. Davis contends

that all at-will employment positions may be viewed as temporary in the sense that

the employee may be removed from the position at any time, and that accordingly

emphasizing the temporary nature of the OIC designation is misleading. But the

OIC designation, unlike an ordinary at-will job, exists solely as a stop-gap measure

to ensure that certain duties are fulfilled in the event the officer normally

responsible for those duties becomes unavailable. Moreover, being designated

OIC does not bring with it any increase in salary or benefits, or unique

opportunities for advancement within the department. Finally, if we accept that the

OIC designation is usually given as a matter of course to the most senior road

patrol officer on a given shift, then it is even more difficult to view that designation

as the same kind of recognition of achievement that a promotion typically implies.

Equally unpersuasive is Davis’s argument that the two occasions when he

was removed as OIC constituted a material change in his regular work
24

assignments. As noted above, OIC is an ephemeral designation; it was not

presented to Davis as becoming, and did not become, a permanent feature of his

job responsibilities as an employee of the Town. Nor is it clear that actual

additional responsibilities of serving as OIC were substantial, at least during the

periods that Davis served in that capacity; after all, a person assumed OIC duties

only on a part-time basis when the sergeant or other more senior shift supervisor

was absent, and even then it is not established on this record that a great deal of

additional work or responsibility was involved. Cf. Allen, 165 F.3d at 409-10 (no

claim of adverse employment action based on defendant’s failure to permit

corrections officer to serve as “acting sergeant” in regular sergeant’s absence). 

Furthermore, even assuming that there is some prestige attached to being

designated as OIC, any loss of prestige suffered by Davis on these two occasions

must be weighed against the fact that he served as OIC on subsequent occasions

after each instance when he was removed. Cf. Yates v. Avco Corp., 819 F.2d 630,

638 (6th Cir. 1987) (temporary demotion of employee to lower grade level, with no

change in salary or benefits and the assurance that she would be restored to her

prior, higher grade level once a new position became available, held not actionable

under Title VII). More to the point, even accepting that Davis may have felt some
25

blow to his professional image when he was removed as OIC, that is simply not

enough to prevail on this record. 

A contrary view would potentially open the door to a wide variety of unfair

work assignment claims that should not be litigated in the federal courts. Title VII

is not designed to make federal courts “‘sit as a super-personnel department that

reexamines an entity’s business decisions.’” Elrod v. Sears, Roebuck & Co., 939

F.2d 1466, 1470 (11th Cir. 1991); see also Combs v. Plantation Patterns, 106 F.3d

1519, 1543 (11th Cir. 1997) (stressing that “federal courts do not sit to

second-guess the business judgment of employers”). Work assignment claims

strike at the very heart of an employer’s business judgment and expertise because

they challenge an employer’s ability to allocate its assets in response to shifting

and competing market priorities. The same concern exists for public entities such

as the Town’s Police Department, which must balance limited personnel resources

with the wide variety of critically important and challenging tasks expected of

them by the public. 

For these reasons, applying the adverse action requirement carefully is

especially important when the plaintiff’s claim is predicated on his disagreement

with his employer’s reassignment of job tasks. Courts elsewhere have been

reluctant to hold that changes in job duties amount to adverse employment action
26

when unaccompanied by any tangible harm. See, e.g., Mungin v. Katten Muchin

& Zavis, 116 F.3d 1549, 1557 (D.C. Cir. 1997) (agreeing with “other circuits

[which] have held that changes in assignments or work-related duties do not

ordinarily constitute adverse employment decisions if unaccompanied by a

decrease in salary or work hour changes.”) (citing, inter alia, Kocsis v. Multi-Care

Mgmt., 97 F.3d 876, 886-87 (6th Cir. 1996) and Crady, 993 F.2d at 136). 

We do not suggest that a change in work assignments can never by itself

give rise to a Title VII claim; in unusual instances the change may be so substantial

and material that it does indeed alter the “terms, conditions, or privileges” of

employment. Cf. McNely v. Ocala Star-Banner Corp., 99 F.3d 1068, 1077-78

(11th Cir. 1996) (holding that district court erred by refusing to submit verdict

form allowing ADA plaintiff to recover for conduct short of termination where

plaintiff alleged that he had been relieved of his supervisory duties, assigned to

clean toilets as a janitor, and later reassigned to shipping department where he was

expected to perform physical tasks difficult or impossible for him to complete). In

the vast majority of instances, however, we think an employee alleging a loss of

prestige on account of a change in work assignments, without any tangible harm,

will be outside the protection afforded by Congress in Title VII’s antidiscrimination clause -- especially where, as here, the work assignment at issue is
27

only by definition temporary and does not affect the employee’s permanent job

title or classification.

To the extent Davis’s removal as OIC on these two occasions deprived him

of valuable experience that might have given rise to more lucrative opportunities

within the department or elsewhere, Davis acquired that experience by serving as

OIC on previous and subsequent occasions. In any event, this claim of harm is

made only at the highest order of abstraction; there is no evidence that Davis

sought, let alone was denied any opportunity due to his removal as OIC on the two

occasions at issue. The OIC incidents plainly do not establish adverse employment

action.

C.

Davis also contends that even if none of the particular incidents about which

he complains (the two memos and the two instances when he was removed as OIC)

amounts to adverse employment action when viewed in isolation, viewed as a

whole these incidents do support a Title VII discrimination claim. We disagree.

Davis’s argument relies almost entirely upon our opinion in Wideman,

which discussed adverse employment action in the context of a Title VII retaliation

claim. There, we stated that it was “enough to conclude, as we do, that the actions

about which Wideman complains considered collectively are sufficient to
28

constitute prohibited discrimination. We need not and do not decide whether

anything less than the totality of the alleged reprisals would be sufficient.” 141

F.3d at 1456.

The facts of Wideman are altogether different than those present here. In

Wideman, the employee not only received two formal written reprimands, she also

was suspended, threatened, and her health was put in jeopardy. Id. at 1455. 

Although Wideman did not purport to answer the question, at least one of these

sanctions (the suspension) presumably would be actionable standing alone under

our precedent. In this case, by contrast, Davis was not suspended, was not given a

formal reprimand, and suffered little if any of the verbal harassment apparently

suffered by the plaintiff in Wideman. Viewed individually or collectively, the

adverse action alleged by Davis is highly insubstantial in comparison to the

misconduct alleged in Wideman.

In the end, no reasonable jury could view the relatively minor incidents

suffered by Davis as the kind of adverse employment action that Title VII was

intended to redress. The fact that the jury awarded Davis only nominal damages is

a telling indication that the Town’s alleged misconduct did not impact Davis in any

material way. We do not diminish the seriousness of Davis’s allegations of racemotivated conduct (allegations which the jury apparently credited in a verdict that
7

Because we find that Davis failed to prove adverse employment action, his Title VII

claim fails on that basis alone, and we do not reach the Town’s alternative argument that Davis

was required to show, but did not show, that similarly-situated white employees were treated

differently than he was.

29

the Town, notably, does not contest on that basis). But while Congress certainly

could have extended the protection of Title VII to all aspects of the employment

relationship, it plainly did not so, and instead contemplated relief under the

statute’s anti-discrimination clause only to employees injured in the “terms,

conditions, or privileges” of their employment. The injuries alleged by Davis --

loss of prestige and potential future opportunities associated with two negative job

performance memoranda and the denial on two brief occasions of a favorable work

assignment -- do not meet the threshold set by Congress.

Because adverse employment action is an indispensable element of a Title

VII plaintiff’s case, Davis’s failure to present sufficient evidence for a reasonable

jury to find that this element was met is fatal to his case. See Turlington v. Atlanta

Gas Light Co., 135 F.3d 1428, 1432 (11th Cir. 1998) (“Although a plaintiff’s

burden in proving a prima facie case is light, summary judgment against the

plaintiff is appropriate if he fails to satisfy any one of the elements of a prima facie

case.”) (citations omitted).7

 Accordingly, the district court properly entered

judgment against Davis and in favor of the Town.

AFFIRMED.