Jenkins v. City of San Antonio Fire Department (12 F. Supp. 3d 925, 2014)

ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

DAVID ALAN EZRA, Senior District Judge.

On April 7, 2014, the Court held a hearing on a Motion for Summary Judgment filed by Defendant City of San Antonio Fire Department (“Defendant” or “SAFD”) (“Mot.,” Dkt. # 29). Chris Pit-tard, Esq., represented Plaintiff Randy Jenkins (“Plaintiff” or “Jenkins”); Mark Kosanovich, Esq., represented Defendant. After careful consideration of the memo-randa in support of and in opposition to the Motion, and in light of the parties’ arguments at the hearing, the Court, for the reasons that follow, GRANTS Defendant’s Motion for Summary Judgment.

BACKGROUND

I. Factual Background

SAFD is a department of the City of San Antonio. The hierarchy of SAFD, in descending order, is: Fire Chief, Deputy Chief, Assistant Chief, District Chief, Captain, Lieutenant, Engineer and Firefighter. SAFD is overseen by Fire Chief Charles N. Hood (“Chief Hood”), a fifty-four-year-old African-American male. (“Hood Aff.,” Dkt. # 29, Ex. A at 1.)

SAFD is comprised of several divisions, including the Fire Marshal Division (also referred to as the Fire Prevention Division). (“Hitzfelder Dep.,” Dkt. #29, Ex. B at 1.) From 2007 through his retirement on December 5, 2011, the Fire Marshal Division fell under the authority of Deputy Chief Rodney Hitzfelder (“Hitzfelder”). (Id.)

Since July 31, 2007, Assistant Chief Earl Crayton (“Asst. Chief Crayton”), a 63-year-old African-American male, has been the direct supervisor of the Fire Marshal Division. (“Crayton Dep.,” Dkt. # 29, Ex. C, 6:10-7:25, Oct. 4, 2013; see also “Cray-ton Aff.,” Dkt. # 29, Ex. D at 1.) He also holds the title of Fire Marshal. (Crayton Dep. 7:1-12.)

Plaintiff Randy Jenkins is a fifty-one-year-old African-American male who has been employed by Defendant San Antonio Fire Department since March 1986. (“FAC,” First Amended Complaint, Dkt. # 28 at 2; “Jenkins Dep.,” Dkt. # 36, Ex. 1, 78:19-21, Apr. 4, 2013.) In 1989, he was promoted to Engineer; in 1993, he was promoted to Lieutenant; in 1995, he was promoted to Captain. (Jenkins Dep. 78:16-79:16.) In 1998, he was promoted to DistricVDivision Chief, and has since retained that title. (Id. 79:17-25.)

Beginning early 2008, Plaintiff was assigned to the Fire Marshal’s Office and held the position of DistricVDivision Chief of Fire Prevention. (Id. 93:1-5, 96.) In this capacity, he was responsible for overseeing Community Safety and Education. (Id. 93-96.) He supervised two individuals: a Lieutenant and an Engineer, as well as several light-duty staff. (Id. 97:3-13.) Another DistricVDivision Chief, Arthur Villareal (“Villareal”), was already working in the Fire Prevention Division and oversaw Arson, Special events, Inspections, and Administration. (Id. 93:1-5.) Both individuals were supervised by Asst. Chief Crayton. (Id. 94:3-23, 98:4-11.)

After Villareal left the Fire Marshal’s Office in June 2008, Asst. Chief Crayton transferred all of the duties of the Fire Marshal’s Office to Plaintiff, including Community Safety and Education, Arson, Special events, and Inspections. (Id. 96-98.) In this capacity, Plaintiff supervised five to six Captains. (Id. 99-100.)

Sometime after 2008, Asst. Chief Cray-ton appointed another individual, District/Division Chief Armando Perez (“Perez”) to the Fire Marshal’s Office. (Id. 100-01.) Asst. Chief Crayton transferred Plaintiffs duties of Community Safety and Education to Perez, transferred Arson to himself, and assigned Plaintiff to oversee Inspections, Administration and Special Events. (Id. 102-03.) In late 2010, however, Perez left the Fire Marshal’s Office to transfer to Special Operations. (Id. 107:11-16.) Asst. Chief Crayton then assigned DistricVDivision Chief Christopher Monestier (“Monestier”) to Community Safety and Education, as well as Special Events. (Id. 107-08.) Plaintiff continued to oversee Administration and Inspections (Id. 110:11-14.) Both Monestier and Plaintiff supervised approximately ten to twelve individuals in their respective positions. (Id. 110:15-25.)

On February 3, 2011, Asst. Chief Cray-ton realigned the duties of Monestier and Plaintiff. (Id. 111-12.) Plaintiff was given responsibility for oversight of Community Safety and Education, and Monestier was given responsibility for the oversight of Inspections and Special Events. (Id.; see also Crayton Dep. 21:18-23:5.)

In mid-2012, Monestier left the Fire Marshal’s Office. (Jenkins Dep. 188:15-20.) Plaintiff asked to be reassigned to supervise Inspections. (Crayton Dep. 66:12-16.) Asst. Chief Crayton felt that Plaintiff had not shown any significant improvement in his work performance to warrant overseeing the Inspections duties, so he decided to open up the position to any interested DistricVDivision Chief. (Id. 67:17-23.) The position was advertised throughout SAFD and a review panel for the position was selected. (Id. 73:17-24.)

The interview panel included three individuals: Terry Kannawin (“Kannawin”), a director in the City’s Department of Development Services; Chief Horan (“Hor-an”), the Chief of Operations for SAFD; and Janae Florance (“Florance”), a deputy chief in SAFD. (Id. 74:22-75:17; Dkt. # 29, Exs. F, G, H.) Kannawin and Horan are Caucasian; Florance is African-American. (Crayton Dep. 75:23-76:4; Dkt. # 29, Exs. F, G, H.) SAFD Human Resources drafted questions for the review panel. (Crayton Dep. 74:12-17.)

The only two candidates to apply for the District/Division Chief position overseeing Inspections were Plaintiff and District/Division Chief Matías Jiminez (“Jiminez”). (Id. 85:5-8.) Jiminez is a Hispanic male, who is two years younger than Plaintiff. (Id. 85:1-10; see also Crayton Aff. at 3 (“I have reviewed the City’s TLETS records for both Chief Jenkins and Chief Jiminez that show their dates of birth. Chief Jenkins’ date of birth is February 17, 1960. Chief Jiminez’s date of birth is January 25, 1962.”).) After the interviews were conducted by the panel, the panel recommended to Chief Hood that Jiminez be selected over Plaintiff. (See Dkt. #29, Exs. F, G, H.) Jiminez was placed in the Fire Marshal’s Office on May 15, 2012 and was in charge of overseeing Inspections, Administration, and Special Events. (Crayton Aff. at 3.) Plaintiff retained responsibility for Community Safety and Education. (Id.)

On May 16, 2013, Asst. Chief Crayton again realigned the duties in the Fire Marshal’s Office to balance workloads. (Id.) Oversight for boarding homes, schools, hospitals, nursing homes, and congregate living, which had previously been part of the Inspections duties, was carved out and assigned to Plaintiff. (Id.) Plaintiff was also given responsibility for overseeing Special Events, HazMat, after-hours details, and supervision of all engineers assigned to the Fire Marshal’s Office, as well as his continued oversight of Community Safety and Education. (Id.) Jiminez was responsible for the balance of Inspections duties, office administration and fire code interpretation, the latter of which had not previously been a division chief assignment. (Id.)

II. Procedural Background

On August 19, 2011, Plaintiff filed a complaint with the Equal Employment Opportunity Commission (“EEOC”), alleging discrimination based on race, color, and age, as well as retaliation. (Dkt. # 36, Ex. 1-1.) In his Charge of Discrimination, Plaintiff contended that over a year-and-a-half earlier, Asst. Chief Crayton had made comments about Plaintiffs having given a statement supporting a complaint filed against Asst. Chief Crayton. (Id.) He also claimed that the February 2011 reassignment of duties with Monestier was a demotion. (Id.)

On August 17, 2012, nearly a year later, Plaintiff filed a second Charge of Discrimination with the EEOC, alleging that his non-selection to be the district chief supervising Inspections was based on discriminatory motives and retaliation. (Dkt. # 36, Ex. 1-2.)

Three days later on August 20, 2012, Plaintiff filed suit in this Court, alleging that the reassignment of duties in February 2011 was based on age and race discrimination because he was replaced by Monestier, a younger, Caucasian, less-experienced District/Division Chief. (Dkt. # 1.) Plaintiff again contended that his reassignment to Community Safety and Education was, in effect, a “demotion” because it resulted in a loss of prestige and overtime pay. (Id. ¶8.) Plaintiff also included a retaliation claim, alleging that Asst. Chief Crayton made the alleged “demotion” because he had previously made comments to Plaintiff, including “He knew Plaintiff had given testimony against him in a fellow fireman’s complaint” and that Asst. Chief Crayton was “keeping records” on Plaintiff. (Id. ¶ 7.)

He amended his complaint on June 26, 2013, to include the claims raised in his second EEOC Charge of Discrimination relating to the 2012 selection process for District/Division Chief of Inspections. (FAC ¶ 8.) He asserted that SAFD engaged in intentional race and age discrimination by selecting Jiminez, a younger, less-qualified Hispanic male, to oversee the Inspections duties. (Id.) He also amended his retaliation claim to allege that SAFD retaliated against him by choosing Jiminez because of Plaintiff's first EEOC Charge of Discrimination. (Id.)

On October 18, 2013, Defendant filed a Motion for Summary Judgment that is now currently before the Court. On November 5, 2013, Plaintiff filed a Response (“Response”). (“Resp.,” Dkt. #34.) Defendant filed a Reply on November 19, 2013. (“Reply,” Dkt. # 41.) On that same day, Defendant filed a Miscellaneous Objection to Plaintiffs evidence tendered in his Response. (Dkt. # 42.)

LEGAL STANDARD

Summary judgment is granted under Federal Rule of Civil Procedure 56 when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Cannata v. Catholic Diocese of Austin, 700 F.3d 169, 172 (5th Cir.2012). “In an employment discrimination case, we focus on whether a genuine issue exists as to whether the defendant intentionally discriminated against the plaintiff.” Grimes v. Tex. Dep’t of Mental Health & Mental Retardation, 102 F.3d 137, 139 (5th Cir.1996).

The moving party bears the initial burden of demonstrating the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the moving party meets this burden, the non-moving party must come forward with specific facts that establish the existence of a genuine issue for trial. ACE Am. Ins. Co. v. Freeport Welding & Fabricating, Inc., 699 F.3d 832, 839 (5th Cir.2012). “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.’” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (quoting First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968)).

In deciding whether a fact issue has been created, “the court must draw all reasonable inferences in favor of the non-moving party, and it may not make credibility determinations or weigh the evidence.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). However, “[unsubstantiated assertions, improbable inferences, and unsupported speculation are not sufficient to defeat a motion for summary judgment.” Brown v. City of Hous., 337 F.3d 539, 541 (5th Cir.2003); Douglass v. United Servs. Automobile Assoc., 79 F.3d 1415, 1429 (5th Cir.1996) (en banc) (“[Cjonclusory allegations, speculation, and unsubstantiated assertions are inadequate to satisfy the nonmovant’s burden.”). “In response to motions for summary judgment, it is therefore incumbent upon the non-moving party to present evidence — not just conjecture and speculation — that the defendant retaliated and discriminated against plaintiff on the basis of [his or] her race.” Grimes, 102 F.3d at 140.

DISCUSSION

The claims asserted in Plaintiff’s First Amended Complaint involve two specific instances that he alleges resulted from race and age discrimination as well as retaliation: (1) the 2011 reassignment wherein Monestier took over the Inspections position and Plaintiff was reassigned the position of Community Safety and Education (the “2011 reassignment”), and (2) the 2012 selection process wherein Jiminez was selected for the Inspections position over Plaintiff (the “2012 selection process”).

I. The 2011 Reassignment

A. Plaintiff’s^Race and Age Discrimination Claims and Retaliation Claims are Barred Because They Were Untimely Filed.

Defendant first argues that it is entitled to summary judgment because Plaintiffs claims of race and age discrimination and retaliation concerning the 2011 reassignment to Community Safety and Education addressed in EEOC Complaint 451-2011-01816 are time barred. Defendant asserts that the EEOC issued its right-to-sue letter on May 16, 2012 and Plaintiff filed suit in this Court on August 16, 2012&emdash;six days outside the requisite ninety-day window. (Mot. at 6-7.) Plaintiff counters that the Fifth Circuit allows for a three-to-seven-day window for receiving a right-to-sue letter and this window therefore makes Plaintiffs Complaint timely. (Resp. at 20-21.)

Before pursuing claims in federal court, a plaintiff claiming employment discrimination must exhaust his or her administrative remedies. Hampton v. IRS, 913 F.2d 180, 182 (5th Cir.1990). A plaintiff has exhausted his or her administrative remedies if he or she filed a timely charge with the EEOC and receives a statutory notice of right to sue (“right-to-sue letter”). Taylor v. Books A Million, Inc., 296 F.3d 376, 378-79 (5th Cir.2002) (citing Dao v. Auchan Hypermarket, 96 F.3d 787, 788-89 (5th Cir.1996)).

After receipt of a right-to-sue letter, a plaintiff has ninety days to file a civil action. 42 U.S.C. § 2000e&emdash;5(f)(1); Taylor, 296 F.3d at 379 (“Title VII provides that claimants have ninety days to file a civil action after receipt of such a notice from the EEOC.” (citing Nilsen v. City of Moss Point, Miss., 674 F.2d 379, 381 (5th Cir.1982))); see also Bunch v. Bullard, 795 F.2d 384, 387-88 (5th Cir.1986) (holding that the ninety-day period within which a plaintiff has to file a claim against an employer begins to run, not when the right-to-sue letter is issued by the EEOC, but when the plaintiff received the letter). From the date of receipt, the ninety-day requirement is “strictly construed.” Taylor, 296 F.3d at 379.

In this case, the EEOC issued its right-to-sue letter on May 16, 2012 (Dkt. #36, Ex. 1-3); however, Plaintiff could not identify the date he received the right-to-sue letter from the EEOC (Jenkins Dep. 86:15-17, 87:19-91:12). When the date of receipt is unknown, courts can presume that a plaintiff received the right-to-sue letter within a certain period of days. The Fifth Circuit has addressed this presumption in several cases.

In Taylor, the Fifth Circuit considered when the ninety-day limitations period began to run when a plaintiff fails to state a specific date upon which he or she received the right-to-sue letter. 296 F.3d at 376. Recognizing that the issue was “a matter of first impression” in the Fifth Circuit, the court looked to other federal courts for direction:

When the date on which a right-to-sue letter was actually received is either unknown or disputed, courts have presumed various receipt dates ranging from three to seven days after the letter was mailed. See Lozano v. Ashcroft, 258 F.3d 1160, 1164 (10th Cir.2001); see also Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 148 n. 1, 104 S.Ct. 1723, 80 L.Ed.2d 196 (1984) (presuming the plaintiff received a right-to-sue letter three days after delivery based upon Fed.R.Civ.P. 6(e)); Banks v. Rockwell Intern. N. Am. Aircraft Operations, 855 F.2d 324, 326 (6th Cir.1988) (applying a five-day presumption of receipt of a right-to-sue letter).

Id. However, the Taylor court held that even under the longer seven-day presumption of receipt, the plaintiffs Title VII claims would be time-barred because she filed eight days after the right-to-sue letter was issued. Id.

One year later, in Martin v. Alamo Community College District, the Fifth Circuit noted that the presumptive time period is three days. 353 F.3d 409, 411 (5th Cir.2003). There, the EEOC mailed the plaintiffs right-to-sue letter on September 17, 1999. Id. The court “presumed” that the plaintiff received this letter three days later, on September 20, 1999. Id. (“We will presume that Martin received this letter three days later, on September 20, 1999.” (citing Baldwin Cnty. Welcome Ctr. v. Brown, 466 U.S. 147, 148 n. 1, 104 S.Ct. 1723, 80 L.Ed.2d 196 (1984); Taylor, 296 F.3d at 379-80)). Thus, the court held, that because the plaintiff filed her suit on December 17, 1999 — eighty-eight days later — “her lawsuit was timely.” Id.

However, in a series of unpublished decisions, the Fifth Circuit revived Taylor’s three-to-seven-day dicta. See Stokes v. Dolgencorp., Inc., 367 Fed.Appx. 545, 547-48 (5th Cir.2010) (“When the plaintiff does not assert that she received her notice on a specific date, we may presume that she received it between three and seven days after it was mailed.” (citing Taylor, 296 F.3d at 379)); Washington v. City of Gulfport, Miss., 351 Fed.Appx. 916, 918 (5th Cir.2009) (“In [Taylor], this court held that in determining a date for presumption of receipt we should use a range of three to seven days after mailing.” (citing Taylor, 296 F.3d at 379)); Bowers v. Potter, 113 Fed.Appx. 610, 612-13 (5th Cir.2004) (“[WJhen the date that the letter is actually received is unknown or is in dispute, we will, like other courts, presume that the letter was received within three to seven days after it was mailed by the OFO, unless the plaintiff, through no fault of [his or] her own, failed to receive the letter, or the plaintiff presents some other equitable reason for tolling the statute.” (citing Taylor, 296 F.3d at 379)).

Although each of the unpublished decisions expressed satisfaction with the three-to-seven-day presumption of receipt, none of the opinions decided the exact number of days necessary because each of the plaintiffs’ suits were untimely even under the seven-day, extra-lenient presumption. See Stokes, 367 Fed.Appx. at 545 (holding that even under the seven-day presumption, the plaintiffs complaint was untimely because it was filed more than ninety days later); Washington, 351 Fed.Appx. at 918 (finding that even under the seven-day presumption, the plaintiffs claim was time barred because he filed suit 104 days later); Bowers, 113 Fed.Appx. at 613 (dismissing the plaintiffs action because after applying even the longest presumption for day of receipt, the plaintiff filed ten days too late).

In Morgan v. Potter, the Fifth Circuit recognized that its case law had never firmly decided the exact number of days for the presumption of receipt of a right-to-sue letter:

Since Taylor, we have repeatedly handled cases like this one without selecting a fixed number of days. See Martin v. Alamo Comm. Coll. Dist., 353 F.3d 409, 411 (5th Cir.2003) (presuming that plaintiff had received letter in three days, but not discussing issue); Bowers v. Potter, 113 Fed.Appx. 610, 612-13 (5th Cir.2004) (unpublished opinion) (reiterating view that presumption of between three and seven days was appropriate, but not deciding issue further because suit was untimely under most lenient presumption). The exact number of days is thus an open question in this Circuit, but we have expressed satisfaction with a range between three and seven days. Bowers, 113 Fed.Appx. at 612.

489 F.3d 195, 196 (5th Cir.2007) (emphasis added). There, an OFO letter stated that it presumed the plaintiff received the letter five days after it was mailed. Id. Noting that because Fifth Circuit case law “d[id] not clearly resolve this case,” the court agreed with the district court that the five-day presumption as provided for in the letter was reasonable and thus, the plaintiffs suit was untimely by two days. Id. at 196-97.

For the reasons that follow, the Court holds that the three-day presumption for receipt of a right-to-sue letter is appropriate given the wealth of authority, both in and outside of the Fifth Circuit, adopting a period of three days.

First, the Court notes even though the Morgan court questioned Martin’s three-day presumption, because Martin did not discuss its rationale for applying such a rule, district courts within the Fifth Circuit have adhered to Martin’s three-day presumption for receipt of right-to-sue letters. See Smith v. Dallas Cnty. Hosp. Dist., 3:13-CV-0792-G BN, 2014 WL 645248, at *3 (N.D.Tex. Feb. 19, 2014) (“Because Plaintiff failed to allege the specific date on which she actually received the right-to-sue letter and the date the letter was received is unknown, the undersigned concludes that a presumption of receipt within three days of issuance is appropriate.”); Dorest v. Piney Point Surgical Ctr., 4:10-CV-03908, 2011 WL 2633575, at *2 (S.D.Tex. July 5, 2011) (“In the Fifth Circuit, there is a presumption that a party receives the right-to-sue notice three days after it is mailed.”); Crabtree v. Cyberonics, Inc., CIV.A. H-05-4221, 2006 WL 1581971, at *2 (S.D.Tex. June 7, 2006) (citing Martin and following three-day presumption for receipt of right-to-sue notice); DeJesus-Harris v. Blockbuster Video, CIVA SA04-CA-1099XR, 2006 WL 2620510, at *5 (W.D.Tex. Sept. 5, 2006) (acknowledging Martin’s three-day presumption, but declining to follow it because the actual date of receipt was known and not disputed); Aportela v. Barnhart, EP-03-CA-0360-DB, 2005 WL 1958963, at *11 (W.D.Tex. Aug. 15, 2005) (following Martin’s three-day presumption and holding that “[t]he complaint ... must be filed ninety-three (93) days after the right-to-sue letter is mailed”).

Second, the majority of persuasive authority holds that the presumption of receipt is three days. In Payan v. Aramark Management Services Ltd. Partnership, the Ninth Circuit adopted the three-day presumption. 495 F.3d 1119 (9th Cir.2007). The court first reasoned, “The three-day presumption accords with Federal Rule of Civil Procedure 6(e), which provides that “[w]henever a party must or may act within a prescribed period after service and service is made [by mail], 3 days are added after the prescribed period would otherwise expire.” ” Id. at 1125-26 (citing Fed.R.Civ.P. 6(e); Baldwin, 466 U.S. at 148 n. 1, 104 S.Ct. 1723 (relying on Rule 6(e)); Seitzinger v. Reading Hosp. and Med. Ctr., 165 F.3d 236, 239 (3d Cir.1999) (same)). The court followed Rule 6(e) because that “rule is well-known, and is reasonable in this context as in other aspects of civil litigation.” Id. at 1126. The court rejected the five-day presumption because the five-day rule

has been explained as according with 20 C.F.R. § 422.210(c) (provision of Social Security Act presuming receipt of notice five days after the date of a denial or a decision), see Hunter v. Stephenson Roofing, Inc., 790 F.2d 472, 475 (6th Cir.1986), and alternatively, as an additional two-day allotment beyond the mailing time allowed in Rule 6(e), see Graham-Humphreys v. Memphis Brooks Museum of Art, Inc., 209 F.3d 552, 557 n. 9 (6th Cir.2000) (referring to Baldwin, 466 U.S. at 148 n. 1, 104 S.Ct. 1723). We see no basis for adopting such a presumption in this context.

Id. The court likewise rejected the seven-day rule because the court could not find any “articulated reason for allowing seven days after mailing.” Id. Relying on “the Supreme Court’s use of the three-day presumption in Baldwin, its adoption by an overwhelming number of circuits, and its basis in Federal Rule of Civil Procedure 6(e),” the court concluded by adopting “the three-day presumption as the governing standard for this circuit.” Id.

As the Ninth Circuit noted, nearly all of the circuit courts follow the three-day presumption for receipt of right-to-sue letters. See Abraham v. Woods Hole Oceanographic Institute, 553 F.3d 114, 121 n. 10 (1st Cir.2009) (applying three-day presumption for receipt of right-to-sue letter); Kerr v. McDonald’s Corp., 427 F.3d 947, 953 (11th Cir.2005) (‘When the date of receipt is in dispute, this court has applied a presumption of three days for receipt by mail, akin to the time period established in Fed.R.Civ.P. 6(e).”); Seitzinger v. Reading Hosp. & Med. Ctr., 165 F.3d 236, 239 (3d Cir.1999) (“[I]n the absence of other evidence, courts will presume that a plaintiff received her right-to-sue letter three days after the EEOC mailed it.” (citing Fed. R.Civ.P. 6(e))); Nguyen v. Inova Alexandria Hosp., 187 F.3d 630 (4th Cir.1999) (“In this situation, the district court’s application of the presumption rule under Rule 6(e) was proper. Applying the three day rule, the letter is presumed to have been delivered to Nguyen on August 23, 1997, and the limitations period expired ninety days later on November 21, 1997.”); Smith-Haynie v. District of Columbia, 155 F.3d 575, 578 n. 3 (D.C.Cir.1998) (“In the event that a date is not pleaded, the Supreme Court has applied the ‘3-day’ rule of Fed.R.Civ.P. 6(e) to presume that the letter is received three days after it is mailed.”); Sherlock v. Montefiore Med. Ctr., 84 F.3d 522, 525-26 (2d Cir.1996) (“Normally it is assumed that a mailed document is received three days after its mailing.” (citing Baldwin, 466 U.S. at 148 n. 1, 104 S.Ct. 1723)).

In fact, the only circuit court that adheres to the five-day rule is the Sixth Circuit. See Graham-Humphreys v. Memphis Brooks Museum of Art, Inc., 209 F.3d 552, 557 n. 9 (6th Cir.2000) (“The Sixth Circuit allots two days for postal delivery of a RTS notice beyond the three day period allowed by Federal Rule of Civil Procedure 6(e).”). The Seventh Circuit requires actual notice, so the presumption is unnecessary. See Houston v. Sidley & Austin, 185 F.3d 837 (7th Cir.1999) (“[The] 90-day period begins to run when the claimant receives actual notice of her right to sue.”).

The Court has searched in vain for any circuit that has adopted a seven-day presumption. Indeed, it appears that the seven-day presumption rests on shaky ground. Although Taylor indicated that a seven-day presumption would be satisfactory, the Tenth Circuit decision cited by Taylor for such a proposition, Lozano v. Ashcroft, 258 F.3d 1160, 1164-65 (10th Cir.2001), is devoid of any citation or reliance on the seven-day rule. Admittedly, Loza-no does state, “When the receipt date for an EEOC right-to-sue letter is unknown or disputed, federal combs have presumed various receipt dates ranging from three to seven days after the letter was mailed.” Id. at 1164. But then the court provides a string citation to several cases — none of which adopt or authorize the seven-day rule:

See, e.g., Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 148 n. 1, 104 S.Ct. 1723, 80 L.Ed.2d 196 (1984) (presuming receipt three days after delivery based upon Fed.R.Civ.P. 6(e)); Seitzinger v. Reading Hosp. & Med. Ctr., 165 F.3d 236, 239 (3d Cir.1999) (same); Sherlock v. Montefiore Medical Ctr., 84 F.3d 522, 525-26 (2d Cir.1996) (finding three-day presumption rebutted); Hunter v. Stephenson Roofing, Inc., 790 F.2d 472, 475 (6th Cir.1986) (applying five-day presumption for social security right-to-sue letter, based upon 20 C.F.R. § 422.210(c) (1985)). See also Rao v. Baker, 898 F.2d 191, 195-96 (D.C.Cir.1990) (explaining EEOC interprets “receipt ... of final decision” to include “a rebuttable presumption that in all cases in which evidence of the actual date of receipt is lacking, the final agency decision will be deemed to have been received [five] days following the date of decision”) (citing 44 Fed.Reg. 34,494 (1979)) (internal quotations and marks omitted).

Id. at 1164-65.

Moreover, the three-day period, analogous to the federal rule governing time for taking action after service by mail, see Fed.R.Civ.P. 6(e), “also provides a clear rule that will enable parties to be aware of when they must act or forfeit their right to sue.” Zillyette v. Capital One Fin. Corp., 179 F.3d 1337, 1342 (11th Cir.1999).

In any event, the three-day rule is not unreasonably harsh; any hardships to plaintiffs can be accommodated by equitable tolling rules — not the presumptive-receipt rule. See Harris v. Boyd Tunica, Inc., 628 F.3d 237, 239 (5th Cir.2010) (reminding that because the ninety-day filing requirement is not a jurisdictional prerequisite, it is subject to equitable tolling); Zillyette, 179 F.3d at 1342 (reminding that although a plaintiff is entitled to a reasonable time to pick up an EEOC right-to-sue letter upon receipt of notice of delivery, the three-day period, analogous to federal rule governing time for taking action after service by mail, provides a clear and appropriate period for a plaintiff to act to receive an unsuccessfully delivered letter and that any other hardships to plaintiff can be accommodated by the equitable tolling rules). Likewise, the three-day presumption for mailing is a rebuttable presumption. “If a claimant presents sworn testimony or other admissible evidence from which it could reasonably be inferred either that the notice was mailed later than its typewritten date or that it took longer than three days to reach her by mail, the initial presumption is not disposi-tive.” Sherlock, 84 F.3d at 526; accord Delesus-Harris, 2006 WL 2620510, at *6-7 (finding the plaintiffs complaint timely because the plaintiff tendered evidence that she received her right-to-sue letter six days after the EEOC mailed the letter, and therefore Martin’s three-day presumption did not apply). In this case, Plaintiff does not argue that his delay is subject to equitable tolling nor does he allege that he actually received his right-to-sue letter past the three-day presumption.

Given that Plaintiff in this case has not tendered any evidence to mitigate the three-day presumption and there is overwhelming support for applying the legal presumption that a right-to-sue letter was received three days after mailing, the Court will presume that Plaintiff received his right-to-sue letter three days after issuance — May 19, 2012. Thus, Plaintiff was required to file his complaint ninety days after the EEOC issued its right-to-sue letter — August 17, 2012. Plaintiffs complaint was filed August 20, 2012, which was three days late. The ninety-day deadline is “strictly construed” in the Fifth Circuit, see Taylor, 296 F.8d at 379; therefore, Defendant is entitled to summary judgment on Plaintiffs race and age discrimination and retaliation claims addressed in EEOC Complaint 451-2011-01816 regarding his 2011 reassignment because the claims are time barred.

B. Plaintiff Cannot State a Prima Fa-cie Case for the 2011 Reassignment for his Race and Age Discrimination Claims.

Even assuming that Plaintiff timely filed his complaint, Plaintiff fails to state a pri-ma facie case for race and age discrimination because he has not produced enough evidence to demonstrate that the 2011 reassignment from his Inspections position to Community Safety and Education was an adverse employment action.

Title YII prohibits an employer from discriminating against an employee because of the “individual’s race, color, religion, sex or national origin.” 42 U.S.C. § 2000e-2(a). Title VII intentional discrimination can be proven by either direct or circumstantial evidence. Jackson v. Watkins, 619 F.3d 463, 466 (5th Cir.2010). In order for evidence to be “direct,” it must, if believed, prove the fact in question without inference or presumption. Fabela v. Socorro Indep. Sch. Dist., 329 F.3d 409, 415 (5th Cir.2003).

In this case, Plaintiff does not have direct evidence of racial or age discrimination. Accordingly, his claims of race and age discrimination are analyzed under the burden-shifting framework provided by McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Abarca v. Metro. Transit Auth., 404 F.3d 938, 941 (5th Cir.2005) (circumstantial evidence of racial discrimination analyzed under McDonnell Douglas burden-shifting framework); accord Jackson v. Cal-Western Packaging Corp., 602 F.3d 374, 378 (5th Cir.2010) (circumstantial evidence of age discrimination analyzed under McDonnell Douglas burden-shifting framework).

According to the McDonnell Douglas framework, a plaintiff must first establish a prima facie case of discrimination. Id. For a racial discrimination claim, a plaintiff must show he or she was: (1) a member of a protected class; (2) qualified for the position held; (3) subject to an adverse employment action; and (4) was replaced by someone outside the protected class, or in the case of disparate treatment, treated differently from others similarly situated. Id. (citing Rios v. Rossotti, 252 F.3d 375, 378 (5th Cir.2001)). For a prima facie case age discrimination claim generally, a plaintiff must show: (1) he is over forty years of age; (2) he is qualified for the position; (3) he was subjected to an adverse personnel action; and (4) he was replaced by someone younger, but not insignificantly younger, or treated less fav-ourably than similarly situated younger employees. Smith v. City of Jackson, Miss., 351 F.3d 183, 196 (5th Cir.2003).

If a plaintiff successfully establishes a prima facie case, there is an inference of intentional discrimination. McDonnell Douglas, 411 U.S. at 792, 93 S.Ct. 1817. The burden of production then shifts to the defendant to articulate a legitimate, non-discriminatory reason for the adverse employment action. Id. at 801-03, 93 S.Ct. 1817; Rachid v. Jack in the Box, 376 F.3d 305, 312 (5th Cir.2004). If the defendant satisfies its burden of establishing a legitimate, non-discriminatory reason, which, if believed, would support a finding that the challenged action was nondiscriminatory, the inference of discrimination raised by the plaintiffs prima facie case dissipates. Grimes, 102 F.3d at 140.

For racial discrimination cases, the burden then shifts back to the plaintiff to create a genuine issue of material fact that the defendant’s reason is not true, but is instead a pretext for discrimination. Reeves, 530 U.S. at 141, 120 S.Ct. 2097. For age discrimination cases, the burden shifts back to the plaintiff to create a genuine issue of material fact that age was the “but-for” cause of the challenged adverse employment action. Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 175, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009). “But-for” cause means the cause without which the challenged adverse employment action would not have occurred. See Long v. Eastfield Coll., 88 F.3d 300, 305 n. 4 (5th Cir.1996).

Throughout the burden-shifting analysis in the context of a motion for summary judgment, the plaintiff bears the ultimate burden of showing a genuine issue of material fact on whether the defendant intentionally discriminated against him or her on the basis of race. Reeves, 530 U.S. at 143,120 S.Ct. 2097.

Here, Defendant argues that Plaintiff cannot establish a prima facie case of race and age discrimination because he was not the subject of an adverse personnel action with respect to the February 2011 reassignment of duties. (Mot. at 10.) Plaintiff counters that he suffered an adverse employment action when he was “involuntarily transferred” from his duties overseeing Inspections and Administration and “demoted” to supervising Community Safety and Education because the latter position resulted in a “loss of prestige, responsibilities and overtime opportunities.” (Resp. at 6-7.)

For all Title VII and ADEA claims, “adverse 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) (quoting Green v. Adm’rs of Tulane Educ. Fund, 284 F.3d 642, 657 (5th Cir.2002)).

“[A] purely lateral transfer is not an adverse employment action.” Burger v. Cent. Apartment Mgmt., Inc., 168 F.3d 875, 879 (5th Cir.1999) (quoting Doe v. Dekalb Cnty. Sch. Dist., 145 F.3d 1441, 1450 (11th Cir.1998)); accord Ledergerber v. Stangler, 122 F.3d 1142, 1144 (8th Cir.1997). In Burger, the Fifth Circuit followed it sister circuits by quoting the following passage by Judge Posner:

Obviously 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. A transfer involving no reduction in pay and no more than a minor change in working conditions will not do, either. Otherwise every trivial personnel action that an irritable, chip-on-the-shoulder employee did not like would form the basis of a discrimination suit. The Equal Employment Opportunity Commission, already staggering under an avalanche of filings too heavy for it to cope with, would be crushed, and serious complaints would be lost among the trivial.

Id. (quoting Williams v. Bristol-Myers Squibb Co., 85 F.3d 270, 274 (7th Cir.1996)).

However, a transfer may be considered a de facto demotion, which qualifies as an adverse employment action. Alvarado v. Tex. Rangers, 492 F.3d 605, 612 (5th Cir.2007). “[T]o be equivalent to a demotion, a transfer need not result in a decrease in pay, title, or grade; it can be a demotion if the new position proves objectively worse&emdash;such as being less prestigious or less interesting or providing less room for advancement.” Id. (quoting Sharp v. City of Hous., 164 F.3d 923, 933 (5th Cir.1999)); see also Serna v. City of San Antonio, 244 F.3d 479, 483 (5th Cir.2001) (“A transfer, even without an accompanying cut in pay or other tangible benefits, may constitute an adverse employment action....”).

Whether the new position is “worse” is an objective inquiry. Alvarado, 492 F.3d at 613-14. “[A] plaintiffs subjective perception that a demotion has occurred is not enough.” Id. (quoting Forsyth v. City of Dall., 91 F.3d 769, 774 (5th Cir.1996)); see also Hunt v. Rapides Healthcare Sys., LLC, 277 F.3d 757, 771 n. 8 (5th Cir.2001) (“[Tjhe focus is on the objective qualities of the positions, rather than the employee’s subjective preference, alone, is an insufficient basis for finding an adverse employment action.”); Serna, 244 F.3d at 483 (“[I]t is insufficient for a plaintiff to show merely that he has been transferred from a job he likes to one he considers less desirable. Rather, a plaintiff must produce enough evidence to allow a reasonable trier of fact to conclude that, when viewed objectively, the transfer caused [him] harm....”).

Defendant sets forth evidence to show that Plaintiffs 2011 reassignment was a lateral move within the Fire Marshal’s Office and that there was no loss in rank or position within the Office. (Mot. at 11.) According to Chief Hood, every position at the rank of District/Division Chief is of equal importance to the operation of SAFD. (Id. at 15 (citing Hood Aff. at 1).) Defendant explains that the reassignment was common practice in the Fire Marshal’s Office and was within Asst. Chief Cray-ton’s authority to use his staff in a manner to best fulfill the duties of the Fire Marshal’s Office. (Id. at 3 (citing Crayton Dep. 32:15-20).) Indeed, the duties and requisite positions within the Fire Marshal’s Office changed frequently. In 2008, Plaintiff handled Community Safety and Education, while Villareal supervised Arson, Special Events, Inspections and Administration. (Jenkins Dep. 97:24-98:3.) When Villareal transferred out of the Fire Marshal’s Office, Plaintiff took over all duties for a short period of time. (Id. 98:18-25.) Then in late 2008 or early 2009, Perez was assigned to the Fire Marshal’s Office and placed in charge of Community Safety and Education, while Plaintiff was in charge of Special Events, Inspections, and Administration. (Id. 100:25-101:12, 101:8-10, 103:15-18.) In late 2010 after Perez had left, Monestier was assigned to the Fire Marshal’s Office and placed in charge of Community Safety and Education. (Id. 107:11-22.) And then in February 2011, Monestier assumed the responsibilities of Inspections and Plaintiff was assigned to Community Safety and Education. (Crayton Dep. 20:10-23:5.)

In response, Plaintiff maintains that the transfer from Inspections and Administration to Community Safety and Education constituted a “demotion” because it resulted in (1) a loss of prestige, (2) a loss of responsibilities, (3) loss of overtime opportunities, and (4) a reduction of opportunities for promotion or appointment to positions of higher responsibility. (Resp. at 7.)

1. Loss of Prestige

Defendant contends that Plaintiff cannot proffer any material evidence to show that the Community Safety and Education position is less prestigious than Inspections because Plaintiffs role in Community Safety and Education is vital to the San Antonio Fire Department:

The three goals of the SAFD are to save lives through emergency response, fire prevention and community involvement. Jenkins is largely responsible for community involvement. In that position, he is the face of the department when he interacts with community and business leaders to promote fire safety.

(Mot. at 12 (citing Hood Aff. at 1).)

To support his theory that the transfer constituted a loss of prestige, in a one sentence response, Plaintiff directs the Court to three portions of his deposition testimony wherein he stated:

[Plaintiff]: Other staff members have said to me — and I don’t recall exactly who, but yes, they feel that there’s a big difference between being over — over community safety and education and being over inspections. Inspection is the — inspection is the prime event, the prime area of the fire marshall’s office. That’s where you go meet with business owners, leaders in the community to discuss major, major projects. None of that happens in community safety and education.

The biggest thing in community safety and education is, like I said, Sparky appearances, demos and school stuff. So it’s a demotion in prestige. It’s a demotion in decisions that you get to make and the people you make contact with, yes.

[Counsel for Defendant]: My question was: Who told you it was a demotion?

[Plaintiff]: There are some people in the office, and I can’t recall exactly who when — who exactly, but there are people in the office who have mentioned that there’s a big difference in the job, and that community safety and education is not viewed on the same level as inspections, that it’s a demotion.

[Counsel for Defendant]: Has anybody ever told you that your position in community safety and education is less prestigious than other division chief positions?

[Plaintiff]: People have told me that the position of community safety and education is less prestigious, yes. Exactly who, I can’t recall at this time, but I’ve had — people have told me particularly after the move that it is. I believe Captain Westbrook has even told me that the fire chief told him anybody can do his job.

[Counsel for Defendant]: Well, that you would agree with me, was hearsay from the chief to Captain Westbrook to you, then, correct?

[Plaintiff]: That was hearsay from chief to Captain Westbrook, but it shows the perspective on what the department thinks about community safety and education.

[Counsel for Defendant]: Has anybody ever told you that you were demoted from the City based upon the shifting of positions between you and Chief Mones-tier?

[Plaintiff]: The word “demotion” wasn’t used as far as demotion in rank, but demotion in responsibility, yes. I was told demotion in responsibility and authority and prestige and importance, yes, I was told that. Well not, prestige. Importance. I was told that that was a form of demotion in those areas.

[Counsel for Defendant]: And that was told to you by whom?

[Plaintiff]: I don’t know — I can’t recall exactly at this time. I know Lieutenant Parsons had discussed this with me before. I think Captain Westbrook also may have mentioned that before to me as well.

(Resp. at 7 (referencing Jenkins Dep. 138:1-22, 138:21-139:10, 198:24-199:12).)

Defendant objects to the first and third portions of Plaintiffs deposition testimony, asserting that both portions are vague and ambiguous, contain hearsay, and “by Jenkins’ own admission,” there may be tape recordings of the alleged exchanges and such recordings that would be the best evidence of what was actually said. (Dkt. # 42 at 2.) Although Plaintiff did not respond to Defendant’s objections and Defendant’s objections lack specific legal argument, the Court has examined Defendant’s objections and finds that they are without merit.

First, although Plaintiffs testimony easily could have been clearer, he did affirmatively state that other staff members considered his position a demotion, so Defendant’s vagueness challenge is insufficient to render Plaintiffs testimony inadmissible for consideration on a motion for summary judgment.

Second, while it is well-settled that a party may not rely on inadmissible hearsay in opposing a motion for summary judgment, see Warfield v. Byron, 436 F.3d 551, 559 (5th Cir.2006) (noting that hearsay evidence is inadmissible for summary judgment purposes under Federal Rule of Civil Procedure 56), Defendant’s hearsay challenge fails because the statements referred to by Plaintiff are not hearsay. Rather, they are admissions by a party-opponent. See Fed.R.Evid. 801(d)(2) (stating that admissions by a party-opponent are not hearsay if “[t]he statement is offered against a party and is ... a statement by the party’s agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship”). Any statements made by SAFD staff members, including Lieutenant Parsons and Captain Westbrook, concerning the evaluation of the Community Safety and Education position would have been within the scope of the staff members’ employment with SAFD and made during the existence of the employment with SAFD as well, and therefore qualify as admissions by a party opponent under Rule 801(d)(2).

Third, Defendant’s “best evidence” objection misses the mark because Plaintiffs testimony does not seek to prove the content of a recording. See Fed. R.Evid. 1002; United States v. Chaney, 299 Fed.Appx. 447, 455 (5th Cir.2008) (“The best evidence rule states that, ‘[i]n proving the content of a writing, recording or photograph, where the terms of the content are material to the case, the original document must be produced unless it is shown to be unavailable for some reason other than the serious fault of the proponent, or unless secondary evidence is otherwise permitted by rule or statute.’” (quoting Kenneth S. Broun et al., McCormick on Evidence 87 (6th ed.2006))). “[T]he best evidence rule comes into play only when the terms of a writing are being established, not when a witness’s testimony is based on personal knowledge.” Kiva Kitchen & Bath v. Capital Distrib., Inc., 319 Fed.Appx. 316, 322 (5th Cir.2009); see also Zimmerman v. Gruma Corp., 3:11-CV-01990-L, 2013 WL 3154118, at *8 (N.D.Tex. June 21, 2013) (overruling a best evidence objection because the declaration suggested that the witness was speaking based on firsthand knowledge of an employee who complained about a letter, as opposed to knowledge gained from a writing depicting the event). In this case, Plaintiffs deposition testimony averred that other staff members told him their impression of the Community Safety and Education position. Plaintiff did not learn of the other staff members’ impressions from his recordings; he learned them first hand, so the best evidence rule does not apply.

At any rate, Plaintiff’s statements are insufficient to create an issue of material fact that his reassignment to Community Safety and Education was “less prestigious.” Plaintiff only offered his statement that Donna Parsons had once told him she found Community Safety and Education “less important.” Plaintiff additionally relied on conclusory allegations that “people” and “other staff members” have generally told him — though he could not point to a particular instance— that they considered Community Safety and Education less important or less prestigious. Plaintiff’s conclusory evidence regarding the alleged decrease in prestige fails to show a pervasive impression in the Fire Marshal’s Office that Community Safety and Education was objectively less prestigious. And, “[i]t goes without saying that such conclusory, unsupported assertions are insufficient to defeat a motion for summary judgment.” Marshall on Behalf of Marshall v. E. Carroll Parish Hosp. Serv. Dist., 134 F.3d 319, 324 (5th Cir.1998) (citing Clark v. America’s Favorite Chicken Co., 110 F.3d 295, 297 (5th Cir.1997) (“Unsupported allegations or affidavit or deposition testimony setting forth ultimate or con-clusory facts and conclusions of law are insufficient to defeat a motion for summary judgment.”)).

Perhaps more importantly, Plaintiff did not cite any reason for these generalized statements from Parsons, “people,” and other “staff members” that Community Safety and Education was less important or prestigious. See Duffy v. Leading Edge Prods., Inc., 44 F.3d 308, 312 (5th Cir.1995) (“[Cjonclusory allegations unsupported by concrete and particular facts will not prevent an award of summary judgment....”); Krim v. BancTexas Group, Inc., 989 F.2d 1435, 1449 (5th Cir.1993) (considering summary judgment appropriate if the “nonmoving party rests merely upon conclusory allegations, improbable inferences, and unsupported speculation”). Without any reason for these generalized statements, Plaintiff has not tendered sufficient evidence to create a genuine issue of material fact showing that the duties assigned to Community Safety and Education position were objectively less prestigious than the duties that corresponded to Inspections. See Alvarado, 492 F.3d at 613-14 (reminding that whether the new position is sufficiently worse enough to amount to a de facto demotion is an “objective inquiry”).

In Click v. Copeland, wherein the Fifth Circuit held that the transfers of two deputy sheriffs from the law enforcement division to positions as jail guards could be considered demotions, the court relied primarily on the fact that Plaintiff produced evidence that “everybody” viewed a transfer from detention to law enforcement as a promotion and there was a general preference for law enforcement positions, as “all” jail guards would like to be doing law enforcement work. 970 F.2d 106, 109 (5th Cir.1992). Unlike in Click, Plaintiff fails to show that the duties associated with the Community Safety and Education position is somehow beneath the duties assigned to the Inspections position or that SAFD staff members would like to be doing Inspections, as opposed to Community Safety and Education. Both positions are in the same office in the Fire Marshal’s Office and involve the same amount of base pay and incentive pay. In fact, although Plaintiff espoused that the Inspections position was more prestigious because it involves interacting with business owners and leaders in the community (Jenkins Dep. 133:1-7), Chief Hood explained that the position of Community Safety and Education is primarily responsible for interacting with those same people (Hood Aff. at 1 (“In that position, [Plaintiff] is the face of the department when he interacts with community and business leaders to promote fire safety.”)).

In effect, Plaintiff was merely assigned different duties within the Fire Marshal’s Office — not necessarily less prestigious duties. Even Monestier, the individual who was reassigned to Inspections, had previously been assigned to work the Community Safety and Education position. And Plaintiff had previously overseen Community Safety and Education on two previous occasions. It was within Asst. Chief Crayton’s discretion to allocate staffing responsibilities within the Fire Marshal’s Office to utilize each District/Division Chiefs talents (and weaknesses) and equally divide up work depending on the needs at the time. (Crayton Aff. at 1 (“During my tenure in this position, I have realigned job duties amongst my subordinates on many occasions, based on department needs and abilities of the persons working for me.”)-)

Even Plaintiff admits that some employees even preferred to work in the Community Safety and Education section, rather than Inspections: “Captain Westbrook voluntarily went to community safety and education because of what he felt was a hostile environment in inspections. And so he voluntarily for the peace of the division went to community safety and education.” (Jenkins Dep. 163:25-164:4.)

At best, Plaintiff attempts to defeat summary judgment by his subjective impression that Community Safety and Education is “less prestigious” or that that work is less interesting, but “a plaintiffs subjective perception that a demotion has occurred is not enough.” Forsyth, 91 F.3d at 774; see also Hunt, 277 F.3d at 771 n. 8 (“[T]he focus is on the objective qualities of the positions, rather than an employee’s subjective preference for one position over another. That subjective preference, alone, is an insufficient basis for finding an adverse employment action.” (emphasis added)); Serna, 244 F.3d at 483 (“[I]t is insufficient for a plaintiff to show merely that he has been transferred from a job he likes to one he considers less desirable. Rather, a plaintiff must produce enough evidence to allow a reasonable trier of fact to conclude that, when viewed objectively, the transfer caused [him] harm_”). Plaintiff has not tendered evidence to create an issue of material fact that the 2011 reassignment was sufficiently less prestigious to constitute an adverse employment action.

2. Loss of Responsibilities

Plaintiff next contends that the transfer to Community Safety and Education resulted in a loss of responsibilities because he used to supervise twelve regularly assigned staff members and now supervises only two regularly assigned staff members and six to eight light-duty employees. (Resp. at 7 (citing Jenkins Dep. 92).) Defendant argues that even if the Inspections position supervised twelve people, the fact that Plaintiff was responsible for anywhere from eight to ten people does not demonstrate that he was subject to an adverse personnel action. (Reply at 3-5.)

Although the Fifth Circuit has never affirmatively stated that the loss of responsibility is the equivalent of a demotion for adverse-employment-action purposes, the Alvarado court cited Hinson v. Clinch County, Georgia Board of Education, 231 F.3d 821, 829 (11th Cir.2000) to state: “In a Title VII case, a transfer to a different position can be ‘adverse’ if it involves a reduction in pay, prestige, or responsibility.” Alvarado, 492 F.3d at 613 (quoting Hinson, 231 F.3d at 829).

In Kidd v. Mando American Corp., the Eleventh Circuit noted that because the plaintiff suffered neither a decrease in pay nor a loss of title — but only a loss of supervisory responsibilities, she needed to show that her case was one of those “unusual circumstances” where the change in responsibilities was “so substantial and material that it altered the ‘terms conditions, or privileges’ of her employment.” 731 F.3d 1196, 1203 (11th Cir.2013) (quoting Davis v. Town of Lake Park, Fl., 245 F.3d 1232, 1245 (11th Cir.2001)). There, a plaintiff had been appointed to temporarily manage the accounts payable department, which meant that the plaintiff supervised the two accounts payable clerks, approved invoices, and handled wire payments. Id. at 1203. When another individual, Seo, became the assistant accounting manager, the plaintiff slowly began to lose her supervisory responsibilities. Id. The court found that the plaintiffs assertion of a loss of supervisory responsibility was insuffi-eient to constitute an adverse employment action:

Because [the plaintiff’s] demotion claim is grounded on a loss of supervisory responsibility, it is one our circuit does not favor. 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. And it is by now axiomatic that Title VII is not designed to make federal courts sit as a super-personnel department that reexamines an entity’s business decisions.

Id. at 1203-04 (internal quotation marks and citations omitted).

In this case, the change in supervisory responsibilities is too minimal to constitute a de facto demotion sufficient to be deemed an adverse employment action. Plaintiff went from supervising ten to twelve regularly assigned staff members to two regularly assigned staff members and between six to eight light-duty employees. While the number of regularly-assigned personnel Plaintiff supervised did decrease , Plaintiff has not shown the de minimus change in number of personnel has significantly altered the terms of his employment such that it resulted in a loss of responsibilities sufficient to constitute a de facto demotion.

3. Loss of Overtime

Defendant argues that Plaintiffs allegation of lost overtime opportunities lacks merit. (Mot. at 12-13.) Defendant proffers that Plaintiff did not lose overtime opportunities because of his reassignment to Community Safety and Education; in fact, he gained opportunities because of the reassignment:

While overseeing inspections, Jenkins was eligible for any overtime assignment in Fire Prevention, except those specifically reserved for CS & E members. Shortly after the realignment, the sworn members of the Fire Prevention Office voted to allow CS & E sworn members to be eligible for all overtime opportunities. The overtime opportunities specifically reserved for CS & E members remained reserved only for those assigned to CS & E duties. When Jenkins’ duties were realigned and he was charged with supervising CS & E, he remained eligible to receive all overtime opportunities he previously had. The only change that Jenkins experienced in relation to overtime opportunities after the realignment was that he also became eligible to receive overtime opportunities only reserved for CS & E staff members.

(Mot. at 12-13 (citing “Monestier Aff.,” Dkt. # 29, Ex. I).)

Again, in a one sentence response, Plaintiff cites the following passage from his deposition to contend that whether he lost overtime opportunities is an issue of material fact:

[Counsel for Defendant]: Okay. How much overtime opportunities have you been denied the opportunity to work?

[Plaintiff]: I don’t have that information at this time, and I believe I said that in my interrogatories response.

[Counsel for Defendant]: Well, on what day did you want to work an overtime opportunity or an opportunity for overtime and you were denied the opportunity to do that?

[Plaintiff]: I can’t make that — I can’t provide that information at this time.

[Counsel for Defendant]: Well, then what day did you think there was overtime available and you wanted to work, but you were not allowed to work?

[Plaintiff]: I can’t say that, sir, at this time. I don’t know that information at this time.

[Counsel for Defendant]: Well, how did you come to the calculation of $10,000?

[Plaintiff]: Because when I looked at one year to the next, 2010 versus 2011, the same year that the vote was taken, there was a decrease in my yearly income of approximately $10,000. Keeping in mind that I had also received two pay raises of nearly five percent, which means my base pay went up as well as my overtime rate went up, but yet I lost nearly $10,000 income. And the only way that could occur is lost overtime opportunities, decreased overtime opportunities.

[Counsel for Defendant]: So, sir, you’re saying that — -just because your pay went down from one yea