Keith Smith v. Dept. of Homeland Security , 647 F. App'x 377 ( 2016 )

Case: 15-30925 Document: 00513486808 Page: 1 Date Filed: 04/29/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 15-30925
Fifth Circuit
FILED
Summary Calendar April 29, 2016
Lyle W. Cayce
Clerk
KEITH SMITH,
Plaintiff–Appellant,
versus
JEH CHARLES JOHNSON, Secretary, Department of Homeland Security;
FEDERAL EMERGENCY MANAGEMENT AGENCY,
Defendants–Appellees.
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:14-CV-916
Before REAVLEY, SMITH, and HAYNES, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
Keith Smith appeals a summary judgment in this discrimination case
against his employer, the Federal Emergency Management Agency (“FEMA”).
Finding no error, we affirm.
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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No. 15-30925
In his original complaint, Smith, who is black, asserted ten Title VII
claims of race discrimination. In response to FEMA’s motion for summary
judgment, Smith explicitly abandoned six of the claims (and argued the
remaining four), referred to as Claims 1, 4, 7, and 8. (A Whistleblower Protec-
tion Act claim was dismissed and is not at issue.) In a thorough and convincing
25-page Order and Reasons, the district court (per the magistrate judge, sitting
by consent) granted summary judgment.
In Claim 1, Smith alleges that, in early January 2008, he was not inter-
viewed or selected for a Project Manager position in the FEMA Acquisition
Program Management Office despite being qualified for the position. The dis-
trict court granted summary judgment on Claim 1 for lack of jurisdiction. A
federal employee’s failure to seek informal counseling within 45 days of an
adverse employment event bars him from pursuing the claim. Teemac v.
Henderson, 298 F.3d 452, 454 (5th Cir. 2002); 29 C.F.R. § 1614.105(a). The
45 days run from the date he knows that an adverse employment action
occurred, not from when he first perceives discriminatory animus. Pacheco v.
Rice, 966 F.2d 904, 906 (5th Cir. 1992).
The court noted that Smith necessarily knew that he had not been sel-
ected for the position as of January 6, 2008, when he was hired for and began
working in a different job in the same office and was introduced to the three
persons who were hired to be Project Managers. Smith did not initiate informal
counseling until more than a year later, on March 31, 2009. He contends that,
because he did not learn until February 2009 that FEMA had determined that
he was qualified for the job but still did not hire him, the clock did not begin
until February 2009.
Smith’s theory is foreclosed by Pacheco. The court correctly decided that
he failed to contact the EEOC timely, so his claim was jurisdictionally barred.
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No. 15-30925
Claim 4 alleges that, in February 2009, Smith was denied a promotion
from GS-13 to GS-14 (and a concomitant raise) even though his manager prom-
ised he would receive the promotion after he attained a certain job certification.
The district court granted summary judgment on the basis of untimeliness.
The court determined that Smith’s promotion request was denied on Febru-
ary 9, 2009. As already noted, Smith did not contact the EEOC for informal
counseling until March 31, 2009—fifty days thereafter. The court therefore
held the claim untimely. Smith does not argue to the contrary in his appellate
brief, so we will not disturb the ruling.
Claim 7 alleges that, in the course of a FEMA “right-sizing” initiative,
Smith was laid off but a similarly situated white employee was not. Even
assuming that Smith made out a prima facie case of discrimination or retalia-
tion, FEMA articulated a legitimate business reason for firing him, and he did
not show that that reason was pretextual. See Tex. Dep’t of Cmty. Affairs v.
Burdine, 450 U.S. 248, 253 (1981). Smith was laid off alongside about a thou-
sand other employees in the course of a major reorganization. His position was
specifically identified for layoffs in the relevant agency directives. We agree
with the district court that Smith did not show that FEMA’s proffered neutral
reason was a pretext for discrimination.
Claim 8 alleges that after the layoffs, a different FEMA office unfairly
refused to hire Smith at a certain pay grade and instead would hire him only
at a lower pay grade. The district court determined that summary judgment
was appropriate because uncontroverted evidence demonstrated that Smith
was not qualified for the higher pay grade and therefore could not make out a
prima facie case of discrimination. See Burdine, 450 U.S. at 253. The pay
grades in the relevant FEMA office were tied to the number of deployments to
FEMA disaster sites an individual had served; Smith had never been deployed
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No. 15-30925
to a disaster site. He urged that his previous service in FEMA jobs was the
substantial equivalent of the requisite number of disaster deployments, but he
provided no evidence of that equivalence (and conceded that the job qualifica-
tions turned strictly on the number of deployments). The district court’s analy-
sis was correct.
Smith’s brief on appeal also makes various arguments about the claims
that he abandoned in the district court. We do not consider any of them. On
the first page of his opposition to summary judgment, Smith explicitly aban-
doned all claims save for those just discussed. He cannot revive them now.
See Little v. Liquid Air Corp., 37 F.3d 1069, 1071 n.1 (5th Cir. 1994) (en banc)
(per curiam) (stating that the court would not consider arguments not pre-
sented to the district court).
The summary judgment is AFFIRMED.
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