Appeal from the United States District Court for the Western District of Texas, Waco.
For ALLEN THOMPSON, Plaintiff - Appellant: Royce John Cullar, Jr., Esq., Cullar & McLeod, L.L.P., Waco, TX.
For CITY OF WACO, TEXAS, Defendant - Appellee: Charles D. Olson, Michael W. Dixon, Esq., Haley & Olson, P.C., Waco, TX; Charles Alfred Mackenzie, Esq., Law Office of C. Alfred Mackenzie, Waco, TX.
For TEXAS MUNICIPAL LEAGUE, TEXAS CITY ATTORNEYS' ASSOCIATION, Amici Curiae: Darrell Gerard-Marc Noga, Cantey Hanger, L.L.P., Dallas, TX.
Before SMITH, CLEMENT, and HIGGINSON, Circuit Judges. E. GRADY JOLLY, Circuit Judge, dissenting from the denial of rehearing en banc, joined by JONES, SMITH, and OWEN, Circuit Judges.
STEPHEN HIGGINSON, Circuit Judge:
The court having been polled at the request of one of its members, and a majority of the judges who are in regular active service and not disqualified not having voted in favor (Fed. R. App. P. 35 and 5TH Cir. R. 35), the Petition for Rehearing En Banc is DENIED. Judge Jolly, joined by Judges Jones, Smith, and Owen, dissents from the court's denial of rehearing en banc, and his dissent is attached.
In the en banc poll, four judges voted in favor of rehearing (Judges Jolly, Jones, Smith, and Owen) and eleven judges voted against rehearing (Chief Judge Stewart and Judges Davis, Dennis, Clement, Prado, Elrod, Southwick, Haynes, Graves, Higginson, and Costa).
ENTERED FOR THE COURT:
E. GRADY JOLLY, Circuit Judge, dissenting from the denial of rehearing en banc, joined by JONES, SMITH, and OWEN, Circuit Judges:
My views of this case are consistent with those that are thoroughly discussed in Judge Smith's dissent. I only present a few examples to summarize briefly the inconsistencies in our opinions dealing with the question at issue; that is, whether there has been an adverse employment action sufficient to support a claim under Title VII: For Title VII discrimination claims, we have said that a " transfer  . . . is insufficient to establish an adverse employment action." Pegram v. Honeywell, Inc., 361 F.3d 272, 283 (5th Cir. 2004) (emphases added) (applying Title VII principles to a § 1981 case and holding that the plaintiff's " claim that his reassignment . . . was a less prestigious or desirable transfer, without more, [does] not lift him over the hurdle of summary judgment for the purpose of an adverse employment action" ). Consistent with this holding, we later said that " [a]dverse employment actions include only ultimate employment decisions such as hiring, granting leave, discharging, promoting, or compensating." McCoy v. City of Shreveport, 492 F.3d 551, 559 (5th Cir. 2007) (emphasis added) (holding that " placing [an employee] on paid leave--whether administrative or sick--was not an adverse employment action" ). Less than a week later, we retreated from this holding and said that the " denial of a transfer may . . . qualify as an adverse employment action, even if the new position would not have entailed an increase in pay or other tangible benefits." Alvarado v. Texas Rangers, 492 F.3d 605, 614 (5th Cir. 2007) (emphases added). Still later, we returned to our holding in McCoy and said, " [F]or Title VII discrimination claims, an adverse employment action 'include[s] only ultimate employment ...