Dollis v. Rubin ( 1995 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 95-30312
Summary Calendar
MARY DOLLIS,
Plaintiff-Appellant,
VERSUS
ROBERT E. RUBIN, SECRETARY OF THE DEPARTMENT OF THE TREASURY,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Louisiana
(93-CV-2940)
December 14, 1995
Before GARWOOD, WIENER, and PARKER, Circuit Judges.
PER CURIAM1:
Plaintiff-appellant, Mary Dollis (“Dollis”), instituted suit
below against the defendant-appellee, the Secretary of the
1
Local Rule 47.5.1 provides, in pertinent part: “The publication
of opinions that merely decide particular cases on the basis of
well-settled principles of law imposes needless expense on the
public and burdens on the legal profession.” Pursuant to that
Rule, the Court has determined that this opinion should not be
published.
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Department of the Treasury (“Secretary”), Robert Rubin, asserting
numerous causes of action under Title VII, 42 U.S.C. § 2000e, et
seq. The trial court granted the Secretary’s motion for summary
judgment as to all of Dollis’ claims that were properly before the
court. Finding no error, we affirm.
FACTS
At all relevant times Dollis was employed as an Equal
Employment Opportunity (“EEO”) Specialist in the southern region of
the U.S. Customs Service. Her job classification was General
Service (“GS”) level 11. In January, 1991, Dollis’ immediate
supervisor left the U.S. Customs Service after unsuccessfully
attempting to promote Dollis in December 1989, and again in
January, 1991. For the remainder of 1991, Dollis functioned as an
EEO Specialist without a day to day supervisor. During that time
Dollis made several more requests for a promotion. She was
eventually given a temporary promotion to the GS-12 level for a 120
day period from August to December of 1991. However, at the end of
this temporary promotion Dollis returned to a GS-11 level.
Dissatisfied with her GS-11 level, Dollis sought a desk audit2
in February of 1992, but was informed by the U.S. Customs Regional
Commissioner that the audit would have to wait until the new EEO
manager arrived. Dollis then filed the first of four formal
2
In a desk audit, a Personnel Specialist interviews the
employee and his/her supervisor and determines (1) whether the
employee’s job description accurately depicts the work performed by
the employee, and (2) whether the job is classified at the proper
GS level.
2
administrative complaints,3 which form the basis of this lawsuit.
The administrative complaints alleged that Dollis had been the
victim of racial and sexual discrimination and that she had been
retaliated against for entering the EEO complaint process.
The issues certified in each administrative complaint by the
Treasury’s Regional Complaint Center (RCC) were as follows:
1. Complaint No. 92-2179
Issue 1: Whether on February 18, 1992, the complainant,
a GS-260-11, was harassed by the denial of a desk audit
which restricted her promotional opportunities and upward
mobility, because of her sex (female), her race (Black),
or in retaliation for her involvement in the EEO
complaints process, as a member of the Regional EEO
staff.
Issue 2: Whether on February 28, 1992, the complainant
was denied attendance to a training conference,
“Partnership for the Future”, because of her sex
(female), her race (Black), or in retaliation for her
involvement in the EEO complaints process, as a member of
the Regional EEO staff.
2. Complaint No. 92-2232
Issue 1: Whether on April 21, 1992, the complainant was
given false information regarding the return of a self-
nomination for an award for the Federal Women’s Program,
in retaliation for filing a previous complaint of
discrimination.
Issue 2: Whether on April 21, 1992, the complainant was
given false information regarding the APC code numbers to
be used for allocation of travel funds, in retaliation
for filing a previous complaint of discrimination.
3
Dollis’ brief references six administrative complaints, but the
appellee contends that only four of those complaints may be
properly considered on appeal. Because the disputed complaints
were not presented to the magistrate, we are not required to
consider them on appeal. See Volkswagen of America, Inc. v.
Robertson, 713 F.2d 1151, 1166 (5th Cir. 1983)(appellate court
generally refuses to consider issues not raised below, unless the
newly raised issue concerns a pure question of law and a refusal to
consider it would result in a miscarriage of justice).
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3. Complaint No. 92-2246
Issue 1: Whether on July 6, 1992, the complainant was
harassed when she was informed of the requirement that
the EEO Manager approve each handwritten document
prepared by her, based on her sex (female), her race
(black), or in her retaliation for her participation in
the EEO complaints process.
4. Complaint No. 92-2246
Issue 1: Whether on July 7, 1992, the complainant was
harassed when a vendor was informed of an incorrect
procurement procedure taken by her, because of her sex
(female), her race (Black), or in retaliation for her
participation in the EEO complaints process.
Each of the RCC’s letters accepting Dollis’ administrative
complaints stated:
If you disagree with the issue of the complaint as set
forth above you must notify me, in writing, no later than
five (5) days of receipt of this letter. If you do not
respond within that time and do not disagree with the
matters to be investigated, I will proceed with the next
step in the processing of this complaint.
Dollis never objected to the issues as stated by the RCC.
Consequently, we must assume that the issues were correctly framed.
An EEO investigator conducted an investigation of all four
administrative complaints from July 27 to July 31, 1992. On
September 15, 1992, the RCC issued its proposed dispositions of the
four administrative complaints. The RCC informed Dollis that her
allegations were not supported by the evidence and, therefore, the
RCC’s proposed dispositions were that no discrimination or
retaliation occurred relative to any of her claims. Dollis was
informed of her appeal options.
Dollis received a desk audit in February of 1993, almost one
year after the time that she initially requested it. The desk
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audit revealed that the work she was required to perform was
consistent with that of a GS-11 level employee. Consequently,
Dollis was not promoted to the GS-12 level.
PROCEEDINGS BELOW
On September 9, 1993, Dollis filed her complaint in district
court alleging numerous Title VII violations. The portions of the
district court complaint relevant to this appeal alleged that
Dollis had been unlawfully discriminated against when she was
denied a promotion and unlawfully retaliated against in unspecified
ways.4 The parties then consented to proceed to trial of the
matter before a magistrate judge pursuant to 28 U.S.C. § 636(c).
On March 3, 1995, the Secretary moved to dismiss Dollis’
lawsuit asserting two theories. First, that the court lacked
jurisdiction over those matters in Dollis’ lawsuit for which she
sought relief but which she had not previously aired through the
agency’s administrative process. Second, the remaining matters in
the complaint which had been administratively exhausted were either
moot and/or failed to comprise “adverse personnel actions”5, and
4
Dollis’ complaint also contained allegations other than
discrimination and retaliation, but her brief did not address those
other issues, all of which were dismissed by the magistrate. “We
liberally construe briefs in determining issues presented for
review; however, issues not raised at all are waived.” Carmon v.
Lubrizol Corp., 17 F.3d 791, 794 (5th Cir. 1994). Consequently, we
are unable to review the other allegations contained in Dollis’
complaint.
5
5 U.S.C. § 2000e-16 provides, in part:
All personnel actions affecting employees . . . shall be
made free from any discrimination based on race, color,
religion, sex, or national origin. (emphasis added).
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therefore failed to state a claim for which the court could provide
a remedy under 42 U.S.C. § 2000e-16. Dollis filed a lengthy
opposition to the Secretary’s motion on March 15, 1995.
On March 21, 1995, the magistrate heard oral argument and
received evidence during the argument, she then converted the
Secretary’s motion to dismiss into a motion for summary judgment.
The magistrate found that none of the allegations contained in
Dollis’ administrative complaints constituted “adverse personnel
actions”. The magistrate also found that Dollis’ district court
complaint contained allegations that had not been exhausted
administratively. The magistrate subsequently granted the
Secretary’s motion for summary judgment as to all of Dollis’
claims. Dollis timely perfected this appeal.
ANALYSIS
This court reviews grants of summary judgment de novo.
Fireman’s Fund Ins. Co. v. Murchison, 937 F.2d 204, 207 (5th Cir.
1991). For purposes of determining whther the grant of summary
judgment was proper, we view the evidence presented to the trial
court in a light most favorable to the nonmovant. Hassan v.
Lubbock Indep. Sch. Dist., 55 F.3d 1075, 1078 (5th Cir. 1995). The
magistrate granted the Secretary’s motion for summary judgment
based upon two grounds. The first being that Dollis had failed to
administratively exhaust allegations contained in her district
court complaint, and second, that those issues which Dollis had
administratively exhausted were either moot and/or not cognizable
under Title VII.
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PREREQUISITES TO A TITLE VII ACTION
The filing of an administrative complaint is ordinarily a
jurisdictional prerequisite to a Title VII action. Ray v. Freeman,
626 F.2d 439, 442 (5th Cir. 1980), cert. denied, 450 U.S. 997, 101
S. Ct. 1701, 68 L. Ed. 2d 198 (1981). Because of this requirement,
we must examine Dollis’ complaint in light of the charges filed in
her administrative complaint in order to determine whether she
satisfied this jurisdictional prerequisite. A Title VII cause of
action
may be based, not only upon the specific complaints made
by the employee’s initial EEOC charge, but also upon any
kind of discrimination like or related to the charge’s
allegations, limited only by the scope of the EEOC
investigation that could reasonably be expected to grow
out of the initial charges of discrimination.
Fine v. GAF Chemical Corp., 995 F.2d 576, 578 (5th Cir.
1993)(quoting Fellows v. Universal Restaurants, Inc. 701 F.2d 447,
451 (5th Cir.), cert. denied, 464 U.S. 828, 104 S. Ct. 102, 78 L.
Ed. 2d 106 (1983)).
Following the guidance provided by Fine and Fellows, we agree
with the magistrate’s finding that Dollis satisfied the
jurisdictional prerequisite of filing an administrative complaint
prior to initiating a Title VII lawsuit only as to the following
claims: (1) Dollis was unlawfully denied a desk audit in
violation of Title VII, and (2) Dollis was unlawfully retaliated
against for filing administrative complaints, in violation of Title
VII. Dollis’ other allegations were properly dismissed by the
magistrate for failing to satisfy the jurisdictional prerequisite
of filing an administrative complaint prior to initiating a Title
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VII lawsuit. Having determined which issues were properly included
in Dollis’ complaint we must next determine whether the
magistrate’s grant of summary judgment to the Secretary on these
two issues was proper. We will discuss Dollis’ retaliation claims
first.
RETALIATION AND TITLE VII
A showing of three elements is required in order to make out
a prima facie case of retaliation: (1) the plaintiff engaged in
activity protected by Title VII; (2) an adverse employment action
occurred; and (3) there was a causal connection between the
participation in the protected activity and the adverse employment
action. Barrow v. New Orleans S.S. Ass’n, 10 F.3d 292, 298 (5th
Cir. 1994)(citing Shirley v. Chrysler First, Inc., 970 F.2d 39, 42
(5th Cir. 1992)). There can be no question that Dollis’
retaliation claims satisfy the first element of the analysis,
filing an administrative complaint is clearly protected activity.
However, we agree with the magistrate’s finding that none of
Dollis’ retaliation complaints involved adverse personnel actions.
Title VII was designed to address ultimate employment
decisions, not to address every decision made by employers that
arguably might have some tangential effect upon those ultimate
decisions. See Page v. Bolger, 645 F.2d 227, 233 (4th Cir.)(en
banc)(noting that Title VII discrimination cases have focused upon
ultimate employment decisions such as hiring, granting leave,
discharging, promoting, and compensating), cert. denied, 454 U.S.
892, 102 S. Ct. 388, 70 L. Ed. 2d 206 (1981). None of Dollis’
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administrative complaints, discussed supra, rise to the level of
ultimate employment decisions. Consequently, the magistrate’s
grant of summary judgment as to Dollis’ retaliation claims was
correct.
DENIAL OF DESK AUDIT
Dollis’ initial complaint alleged that on February 18, 1992,
she was unlawfully denied a desk audit because of her sex and/or
race, and that the denial of the desk audit restricted her
promotional opportunities. The magistrate also granted the
Secretary’s motion for summary judgment on this claim after finding
that the denial of a desk audit is not an actionable “adverse
personnel action” under Title VII. Like Dollis’ other claims, the
denial of a desk audit is not the type of ultimate employment
decision that Title VII was intended to address. Therefore, we
affirm the magistrate’s grant of summary judgment on this issue as
well.
CONCLUSION
Finding that none of the allegations properly before the
magistrate are cognizable under Title VII, we need not address
Dollis’ other points of error. Accordingly, the magistrate’s grant
of summary judgment to the Secretary is AFFIRMED.
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