Washington v. Veneman , 109 F. App'x 685 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
REVISED OCTOBER 12, 2004
September 23, 2004
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 04-30233
Summary Calendar
LORRAINE WASHINGTON, ET AL
Plaintiffs
LORRAINE WASHINGTON
Plaintiff - Appellant
v.
ANN VENEMAN, SECRETARY, DEPARTMENT OF AGRICULTURE
Defendant - Appellee
Appeal from the United States District Court
for the Eastern District of Louisiana
No. 02-CV-02678-K
Before KING, Chief Judge, and SMITH and BENAVIDES, Circuit
Judges.
PER CURIAM:*
Plaintiff-Appellant Lorraine Washington appeals the district
court’s order granting Defendant-Appellee’s motion to dismiss and
motion for summary judgment in this Title VII action. For the
*
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that this opinion should not be published and is not precedent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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following reasons, we AFFIRM.
I. Background
Lorraine Washington (“Washington”), an African-American
female born January 5, 1956, is employed by the United States
Department of Agriculture’s National Finance Center (the “NFC”)
in New Orleans, Louisiana. On August 30, 2002, after exhausting
her administrative remedies, Washington brought this Title VII
lawsuit against U.S. Secretary of Agriculture Anne Veneman
(“Veneman”).1 Washington alleges her employer discriminated
against her by, inter alia, failing to promote her, denying her
request for leave, denying her additional options to repay
religious leave, reprimanding her for reading on the job, denying
her the use of a floor heater, requiring her to keep a task list
of daily duties, allowing rude behavior from supervisors, giving
her undeserved poor performance ratings, denying her a
performance award, scheduling training on a Holiday Program day,
threating disciplinary action, disclosing personal information on
an organizational chart, denying adequate work assignments to
fill a nine-hour work day, and removing and later replacing items
from her desk. Washington claims that her employer discriminated
1
The original complaint was brought on behalf of
Washington and ten other NFC employees. On July 17, 2003, the
district court granted an unopposed motion to sever the other
plaintiffs from Washington’s lawsuit.
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against her on the basis of race and sex, as well as in
retaliation for her various prior Equal Employment Opportunity
(“EEO”) complaints.2
On December 16, 2003, Veneman filed a motion to dismiss
under Rule 12(b)(6) and for summary judgment under Rule 56. On
January 27, 2004, the district court granted Veneman’s motion.
The district court held that all of Washington’s discrimination
claims except three (failure to promote, denial of a request for
leave, and denial of additional options to repay religious leave)
clearly failed to state a claim for relief and were therefore
dismissed under Rule 12(b)(6). Washington v. Veneman, No. Civ.A.
02-2678, 2004 WL 170315, at * 5 (E.D. La. 2004). Although noting
that the leave-based claims (denial of leave and denial of
opportunities to repay religious leave) more closely resembled
actionable claims under Title VII, the court nevertheless
dismissed these claims under 12(b)(6) as well. See id. As an
alternative holding, the court granted summary judgment on the
two leave-based claims. Id. Finally, the district court granted
summary judgment in favor of Veneman on the failure-to-promote
claim. Id. Washington, who was represented by counsel below,
now appeals pro se.
II. Discussion
2
Washington’s complaint also alleged age discrimination,
but she no longer maintains that theory on appeal.
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A. Standards of Review
We review Rule 12(b)(6) dismissals for failure to state a
claim de novo. Gregson v. Zurich Am. Ins. Co., 322 F.3d 883, 885
(5th Cir. 2003). This court accepts “all well-pleaded facts as
true, viewing them in the light most favorable to the plaintiff.”
Jones v. Greninger, 188 F.3d 322, 324 (5th Cir. 1999). “Thus,
the court should not dismiss [a] claim unless the plaintiff would
not be entitled to relief under any set of facts or any possible
theory that [it] could prove consistent with the allegations in
the complaint.” Id.We also review a district court’s grant of summary judgment
de novo, applying the same standard as the district court.
Fierros v. Tex. Dep’t of Health, 274 F.3d 187, 190 (5th Cir.
2001). Summary judgment is proper when the record, viewed in the
light most favorable to the nonmoving party, demonstrates that no
genuine issue of material fact exists and that the movant is
entitled to judgment as a matter of law. See FED. R. CIV. P.
56(c); see also Blow v. City of San Antonio, 236 F.3d 293, 296
(5th Cir. 2001). “The moving party is entitled to a judgment as
a matter of law [if] the nonmoving party has failed to make a
sufficient showing on an essential element of her case with
respect to which she has the burden of proof.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks
omitted).
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B. Legal Theories
For each of her various discrimination claims, Washington
advances two independent legal theories: disparate treatment
(i.e., intentional race and sex discrimination) and retaliation.
See 42 U.S.C. §§ 2000e-2(a), 2000e-3(a), 2000e-16(a) (2003).
1. Disparate Treatment
The McDonnell Douglas burden-shifting framework governs
Washington’s Title VII claims for disparate treatment.3
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).
Under this framework, “[a] Title VII plaintiff bears the initial
burden to prove a prima facie case of discrimination by a
preponderance of the evidence.” LaPierre v. Benson Nissan, Inc.,
86 F.3d 444, 448 (5th Cir. 1996) (citing McDonnell Douglas, 411
U.S. at 802). Although the precise articulation of the elements
of a prima facie case will vary according to the facts of the
case and the nature of the claim, a plaintiff usually satisfies
this initial burden by showing that: (1) she is a member of a
protected class, (2) she was qualified for the position, (3) she
suffered an adverse employment action, and (4) the employer
continued to seek applicants with the plaintiff’s qualifications,
3
The McDonnell Douglas framework applies here because
Washington offers only circumstantial evidence to support her
disparate treatment claims. Evans v. City of Houston, 246 F.3d
344, 348-50 (5th Cir. 2001); see also Kendall v. Block, 821 F.2d
1142, 1145 (5th Cir. 1987).
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the employer selected someone of a different race or sex, or that
others similarly situated were treated more favorably than she.
Id. at 448 & n.3; Evans v. City of Houston, 246 F.3d 344, 348-50
(5th Cir. 2001); Rios v. Rossotti, 252 F.3d 375, 378 (5th Cir.
2001); Urbano v. Cont’l Airlines, Inc., 138 F.3d 204, 206 (5th
Cir. 1998).
“Once established, the plaintiff’s prima facie case raises
an inference of intentional discrimination. The burden of
production then shifts to the defendant to articulate a
legitimate, nondiscriminatory reason for the challenged
employment action.” LaPierre, 86 F.3d at 448 (citing McDonnell
Douglas, 411 U.S. at 802). If the defendant proffers such a
legitimate reason, the burden shifts back to the plaintiff to
show that the defendant’s reason was merely a pretext for
discrimination. Rios, 252 F.3d at 378 (citing Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 138-42 (2000)).
Of course, “[t]he ultimate burden of persuading the trier of fact
that the defendant intentionally discriminated against the
plaintiff remains at all times with the plaintiff.” Reeves, 530
U.S. at 143 (alteration in original) (quoting Tex. Dep’t of Cmty.
Affairs v. Burdine, 450 U.S. 248, 253 (1981)). Whether summary
judgment is appropriate depends on a number of factors, including
“the strength of the plaintiff’s prima facie case, the probative
value of the proof that the employer’s explanation is false, and
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any other evidence that supports the employer’s case and that
properly may be considered.” Id. at 148-49.
2. Retaliation
Washington’s claims for retaliation also fall within the
McDonnell Douglas burden-shifting framework.4 See Fierros v.
Tex. Dep’t of Health, 274 F.3d 187, 191-92 (5th Cir. 2001).
Accordingly, “the plaintiff carries the initial burden of
establishing a prima facie case of retaliation.” Id. A
plaintiff may satisfy this burden by demonstrating that: (1) she
engaged in an activity protected by Title VII, (2) an adverse
employment action was taken against her, and (3) a causal link
existed between the protected activity and the adverse employment
action. Id.; Long v. Eastfield Coll., 88 F.3d 300, 304 (5th Cir.
1996).
The plaintiff’s prima facie showing of retaliation
establishes an inference of the employer’s impermissible
retaliatory motive. Fierros, 274 F.3d at 191. Like in disparate
treatment cases, the burden then shifts to the employer to
produce a legitimate, nonretaliatory reason for the adverse
4
Again, the McDonnell Douglas framework applies because
Washington bases her retaliation claims solely on circumstantial
evidence. Fierros v. Tex. Dep’t of Health, 274 F.3d 187, 191-92
(5th Cir. 2001) (noting that in direct evidence cases, the burden
of proof shifts to the employer to establish by a preponderance
of evidence that the same decision would have been made
regardless of the protected activity); Moore v. U.S. Dep’t of
Agric., 55 F.3d 991, 995 (5th Cir. 1995).
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employment action. Id. Once the employer produces evidence of
such a reason, the plaintiff has the ultimate burden of proving
that the protected activity was a but-for cause of the adverse
employment decision. Long, 88 F.3d at 305 n.4. The jury may
infer the existence of but-for causation from the combination of
the plaintiff’s evidence establishing the prima facie case of
retaliation and the plaintiff’s evidence that the reasons given
by the employer are merely pretextual. Mota v. Univ. Tex.
Houston Health Sci. Ctr., 261 F.3d 512, 519 (5th Cir. 2001).
3. Ultimate Employment Actions
We have consistently held that in order to present a prima
facie case for either disparate treatment or retaliation, a
plaintiff must show that the employer took an “adverse employment
action” against the plaintiff. See, e.g., Pegram v. Honeywell,
Inc., 361 F.3d 272, 281-82 (5th Cir. 2004). In this circuit,
only “ultimate employment decisions” qualify as the adverse
employment actions necessary to establish a prima facie case of
discrimination or retaliation. Mattern v. Eastman Kodak Co., 104
F.3d 702, 707 (5th Cir. 1997); see also Dollis v. Rubin, 77 F.3d
777, 781-82 (5th Cir. 1995) (per curiam) (“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.”). Ultimate
employment decisions include hiring, granting leave, discharging,
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promoting, and compensating. Mattern, 104 F.3d at 707; Hernandez
v. Crawford Bldg. Material, 321 F.3d 528, 531-32 (5th Cir. 2003)
(per curiam) (explaining that the definition of ultimate
employment actions in retaliation cases is derived from the
definition of discrimination in disparate treatment cases).
C. Analysis
1. Claims Not Constituting Ultimate Employment Actions
The district court properly dismissed the vast majority of
Washington’s claims because the employer’s actions did not
constitute ultimate adverse employment actions. None of the
following actions asserted by Washington constitute ultimate
employment actions under our jurisprudence: reprimanding for
reading on the job, denying the use of a floor heater, requiring
an employee to keep a task list of daily duties, rude behavior
from supervisors, undeserved poor performance ratings, denying a
performance award, scheduling training on a Holiday Program day,
threatening disciplinary action, disclosing personal information
on an organizational chart, denying adequate work assignments to
fill a nine-hour work day, and removing items from the employee’s
desk and then later replacing them. See, e.g., Hernandez, 321
F.3d at 532 n.2 (cataloguing Fifth Circuit cases on ultimate
employment actions). To find otherwise would transform “every
trivial personnel action that an irritable . . . employee did not
like [into the] basis of a discrimination suit. The Equal
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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.”
Burger v. Cent. Apartment Mgmt., 168 F.3d 875, 879 (5th Cir.
1999) (per curiam) (quoting Williams v. Bristol-Myers Squibb Co.,
85 F.3d 270, 274 (7th Cir. 1996)). Thus, Washington failed to
establish a prima facie case for either disparate treatment or
retaliation with respect to these claims, and the district court
did not err in granting Veneman’s motion to dismiss.
2. Denial of Leave and Opportunity to Repay Leave
The district court also dismissed Washington’s claims that
she was denied leave and denied the opportunity to repay leave
for a religious holiday on the grounds that these denials did not
constitute ultimate employment actions. We have previously
listed the denial of leave among those employment decisions that
may satisfy the ultimate employment action requirement.5 E.g.,
Mattern, 104 F.3d at 707. Notwithstanding the fact that a denial
of leave can constitute an ultimate employment action in certain
circumstances, we have serious doubts that Washington’s
particular leave-based claims rise to the level of an ultimate
employment decision. We, however, need not decide the issue
5
We also note that Veneman expressly conceded in her
motion to dismiss and motion for summary judgment that these two
claims satisfied the ultimate employment action element of a
prima facie case.
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here. Instead, we affirm the district court’s alternative grant
of summary judgment on the grounds that Washington failed to meet
her burden with respect to these two claims on either a disparate
treatment or retaliation theory. Cf. Okoye v. Univ. Tex. Houston
Health Sci. Ctr., 245 F.3d 507 (5th Cir. 2001) (noting that a
court of appeals may affirm on any grounds supported by the
record when reviewing a district court order de novo).
Even assuming, arguendo, that Washington established a prima
facie case for disparate treatment and retaliation for her claim
that she was denied leave, Veneman produced ample evidence
showing that the NFC had a legitimate, nondiscriminatory,
nonretaliatory reason for the denial. In February 1999,
following normal procedure, the NFC asked its employees
(including Washington) to schedule leave for the year in advance
by designating a first and second choice for vacation time.
Washington requested vacation during Christmas, without listing a
second choice. NFC policy, however, requires employees to
alternate working on major holidays because these vacation
periods are consistently in high demand. Because Washington had
taken Christmas vacation in 1998, her supervisor asked that she
select another time for vacation in 1999. Washington complied
with the request, and her second choice for vacation was granted.
Thus, the “denial” of leave comported with established internal
NFC procedure, and any presumption of discrimination inferred
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from Washington’s prima facie case therefore disappeared.
Consequently, the burden then shifted to Washington to show
that this explanation was merely a pretext for discrimination.
She failed to present any evidence, much less sufficient
evidence, that this was the case. In the same vein, Washington
failed to provide any evidence that she would have been granted
her request for vacation but-for her prior EEO activity. The
only evidence in the record that even possibly questions the
legitimacy of the stated reason is Washington’s own affidavit
that the NFC did not always follow its vacation policy. This
statement, by itself, fails to satisfy Washington’s summary
judgment burden. See Ramsey v. Henderson, 286 F.3d 264, 269-70
(5th Cir. 2002) (noting that this court “has cautioned that
‘conclusory allegations, speculation, and unsubstantiated
assertions are inadequate to satisfy’ the nonmovant’s burden in a
motion for summary judgment.” (quoting Douglass v. United Servs.
Auto. Ass’n, 79 F.3d 1415, 1429 (5th Cir. 1996))). Thus, there
is no genuine issue of material fact regarding Washington’s
retaliation claim, and summary judgment was appropriate. See
Long, 88 F.3d at 305 n.4, 308.
For the same reasons, Washington’s claim that she was denied
the opportunity to repay leave taken for religious holiday in
December 2001 fails. NFC policy allows supervisors to grant
employees time-off on regular work days for religious observance.
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Employees taking such leave, however, must repay the time by
working additional hours; otherwise, those hours will be deducted
from the employee’s paycheck. The record shows that the NFC
provided Washington with the opportunity to repay the religious
leave in question. However, she failed to fill out the necessary
forms and was therefore billed for the time she took off.
Plaintiff produced no evidence showing that this reason was
merely a pretext for discrimination. Furthermore, no evidence
suggests that Washington would have been allowed to repay her
religious leave but-for her EEO complaints. Accordingly,
Washington failed to meet her summary judgment burden on both of
her leave-based claims.
3. Failure to promote
Washington similarly failed to meet her summary judgment
burden with respect to her claim that the NFC denied her a
promotion in July 2000. Even assuming that Washington
established a prima facie case, she did not present evidence
showing that the NFC’s reasons supporting its promotion decision
were pretextual or that she would have been promoted but-for her
EEO activity. Absent a genuine issue of material fact on the
matter, the district court properly granted summary judgment.
In September 1999, the NFC advertised two vacancies for a
position as Program Analyst, GS-07/09/11. A promotion panel,
consisting of a Personnel Management Specialist (an African-
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American female) and three rating members (a White male, an
African-American female, and a White female) reviewed, rated, and
ranked the applications. Following NFC procedure, the panel
utilized a plan that measured and scored each candidate’s
proficiency in the four criteria identified in the vacancy
announcement. Each candidate received a total score derived from
the four criteria scores. The highest scoring candidates made
the Best Qualified (“BQ”) list, which was forwarded to the
selecting official for the final promotion decision.
Washington applied for both the GS-7 and the GS-9 positions.
Of the 54 candidates that applied for the GS-7 promotion, the top
nine made the BQ list. The cut-off score was 355. Washington,
who scored a 330, did not make the BQ list, and she therefore was
not considered for promotion by the selecting official. Of the
24 applicants for the GS-9 position, seven made the BQ list. The
cut-off score was 320. Washington scored a 300 and thus did not
make the BQ list. From the BQ lists, the selecting official
offered promotions to an African-American male, a White female,
and a Hispanic female.
Thus, Veneman established a nondiscriminatory,
nonretaliatory basis for the NFC’s decision not to promote
Washington. The fact that the selecting official ultimately
offered the promotion to an African-American man, a White woman,
and a Hispanic woman provides further evidence of the lack of any
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discriminatory motive. See Nieto v. L&H Packing Co., 108 F.3d
621, 624 & n.7 (5th Cir. 1997) (stating that the fact that a
Hispanic male was replaced by another Hispanic male was material,
but not outcome determinative, to its conclusion that the
employer did not discriminate). Moreover, nothing in the record
suggests that the promotion panel knew anything about
Washington’s prior EEO complaints, thus demonstrating the
unlikelihood of a retaliatory motive. Chaney v. New Orleans Pub.
Facility Mgmt., Inc., 179 F.3d 164, 168 (5th Cir. 1999).
Therefore, Veneman satisfied her burden under McDonnell Douglas.
In response, Washington utterly failed to provide any
evidence that her non-promotion resulted from race or sex
discrimination, that the reasons proffered by the NFC were
pretextual, or that she would have been promoted but-for her
prior EEO activity. The record shows that a number of
candidates, in addition to those ultimately selected, were more
qualified than Washington. Specifically, 15 candidates
(including the nine who made the BQ list) outscored Washington in
the GS-7 ratings, and 12 applicants (including the seven who made
the BQ list) outscored her in the GS-9 ratings. Washington
provided no evidence that she was clearly more qualified than the
applicants selected, and therefore her claim for non-promotion
must fail. See Price v. Fed. Express Corp., 283 F.3d 715, 723
(5th Cir. 2002) (“We have held in previous cases that a showing
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that the unsuccessful employee was clearly better qualified is
enough to prove that the employer’s proffered reasons are
pretextual. . . . Showing that two candidates are similarly
qualified does not establish pretext under this standard.”); Odom
v. Frank, 3 F.3d 839, 845-47 (5th Cir. 1993).
After carefully reviewing the record, we conclude that
Washington has failed to offer evidence that, when viewed in the
light most favorable to her, would allow a rational fact-finder
to make a reasonable inference that the NFC’s proffered reasons
for its employment actions were merely a pretext for
discrimination or retaliation. See Ramsey 286 F.3d at 269-70;
Grimes v. Tex. Dep’t of Mental Health & Mental Retardation, 102
F.3d 137, 143 (5th Cir. 1996) (affirming summary judgment because
plaintiff offered insufficient evidence to show that the
defendant’s articulated reasons were pretextual). Hence, the
district court did not err in granting summary judgment in favor
of Veneman.
III. Conclusion
For the forgoing reasons, we AFFIRM the judgment of the
district court.