Holloway v. Department of Veterans Affairs , 244 F. App'x 566 ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS July 23, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
)))))))))))))))))))))))))) Clerk
No. 06-20483
Summary Calendar
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WARREN HOLLOWAY,
Plaintiff-Appellant,
v.
DEPARTMENT OF VETERANS AFFAIRS; ANTHONY PRINCIPI, SECRETARY,
LARRY GARDNER, JOHN DOE,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Texas
No. H–04-1395
Before DeMOSS, STEWART, and PRADO, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Warren Holloway (“Holloway”) appeals the
district court’s order granting the motion for summary judgment of
Defendants-Appellees Department of Veterans Affairs (“VA”) and
Anthony Principi, Secretary of the VA. We VACATE the award of
summary judgment on Holloway’s retaliation claim under Title VII of
the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a), and REMAND for
*
Pursuant to 5TH CIRCUIT RULE 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that this opinion should not be published and is not precedent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 CIRCUIT RULE
47.5.4.
a determination consistent with Burlington Northern & Santa Fe
Railway v. White, 126 S. Ct. 2405 (2006).
Holloway, an African-American male, was formerly employed as
a computer specialist by the Michael E. DeBakey Veterans Medical
Center in Houston, Texas. During his employment, he filed a number
of grievances under the collective bargaining agreement with the VA
and several EEO complaints alleging race discrimination and
retaliation. Holloway was terminated on August 21, 2000, after he
failed to obtain the necessary security clearance for his moderate
security risk position.1
Holloway filed suit in April 2004, alleging race discrimination
and retaliation based on his removal from a moderate security risk
position and his termination. In addition to these claims, Holloway
alleged that the VA retaliated against him by, among other things,
denying his leave of absence request; requiring him to work on light
duty while other employees were not required to work; and subjecting
him to harassment and assault by his supervisors.2 The district
court dismissed Holloway’s race discrimination and retaliation
claims in their entirety. Holloway appeals only the district
court’s dismissal of the non-removal, non-termination retaliation
1
Holloway’s position was designated a moderate security risk
in November 1992. Holloway was removed from his moderate security
risk position on July 7, 2000, because he had not received the
required security clearance.
2
Holloway alleges a total of twenty-two acts of retaliation
by the VA (“the non-removal, non-termination retaliation claim”).
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claim.
We have jurisdiction over this appeal under 28 U.S.C. § 1291
because it arises from a final judgment of the district court. This
court reviews a summary judgment de novo, using the same standards
applied by the district court. Dallas County Hosp. Dist. v.
Assocs. Health & Welfare Plan, 293 F.3d 282, 285 (5th Cir. 2002).
To establish a claim of retaliation under Title VII, a
plaintiff must demonstrate that: (1) he engaged in activity
protected by Title VII; (2) his employer took an adverse employment
action against him; and (3) a causal connection exists between the
protected activity and the adverse employment action. See, e.g.,
Fabela v. Socorro Indep. Sch. Dist., 329 F.3d 409, 414 (5th Cir.
2003). The district court dismissed the non-removal, non-
termination retaliation claim on the ground that Holloway failed to
show an adverse employment because only “ultimate employment
decisions such as hiring, granting leave, discharging, promoting,
and compensating” constituted adverse employment actions. Holloway
v. Dep’t of Veterans Affairs, No. H-04-1395, 2006 WL 1168893, *4
(S.D. Tex. April 28, 2006) (citing Felton v. Polles, 315 F.3d 470,
486 (5th Cir. 2002)).
After the district court rendered its decision, the Supreme
Court decided Burlington Northern, which rejected the approach taken
by several circuits, including this one, for determining adverse
employment actions in retaliation cases. Instead of the “ultimate
employment decision” standard, the Supreme Court held that an
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employee suffers an adverse employment action if “a reasonable
employee would have found the challenged action materially adverse,
which in this context means it well might have dissuaded a
reasonable worker from making or supporting a charge of
discrimination.” Burlington N., 126 S. Ct. at 2415 (internal
quotation marks omitted). Because this circuit’s standard for
determining an adverse employment action is no longer limited to
ultimate employment decisions, we remand Holloway’s non-removal,
non-termination retaliation claim for reconsideration in light of
Burlington Northern.
For the reasons stated above, we VACATE the district court’s
grant of summary judgment on the non-removal, non-termination
retaliation claim and REMAND for a determination consistent with
Burlington Northern.
VACATED and REMANDED.
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