Clinton Bowers v. James Peake , 366 F. App'x 562 ( 2010 )

Case: 09-20420 Document: 00511031963 Page: 1 Date Filed: 02/22/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 22, 2010
No. 09-20420 Charles R. Fulbruge III
Summary Calendar Clerk
CLINTON BOWERS,
Plaintiff - Appellant
v.
DR. JAMES B. PEAKE; DEPARTMENT OF VETERANS AFFAIRS,
Defendants - Appellees
Appeal from the United States District Court
for the Southern District of Texas
4:08-CV-3445
Before GARZA, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Clinton Bowers appeals from the district court’s grant
of summary judgment in favor of Defendant-Appellee Dr. James B. Peake and
the Department of Veterans Affairs (the “VA”). The district court granted
summary judgment for Defendants, finding that Bowers failed to
administratively exhaust most of his claims and that the claims that were
properly before the court failed to present any issues of material facts.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-20420
We review a grant of summary judgment de novo, applying the same
standards as the district court. Ackerman v. Wyeth Pharm., 526 F.3d 203, 207
(5th Cir. 2008). Summary judgment is properly granted when there are no
issues of material fact and one party is entitled to judgment as a matter of law.
See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
Bowers asserted a retaliation claim, alleging that he was not hired by the
VA for a cemetery representative position on account of previous complaints he
filed with the Equal Employment Opportunity Counsel. Uncontroverted
summary judgment evidence shows that the position he applied for was never
filled. As the district court noted, non-selection for a position that remains
unfilled cannot support a retaliation claim because “the cancellation of an
opening is a legitimate, non-discriminatory and non-retaliatory reason for not
selecting a person for those positions.” Phillips v. TXU Corp., No. 3:05-CV-1588,
2006 WL 3900112, at *5 (N.D. Tex. Dec. 29, 2006) (citing Black v. Tomilinson,
425 F. Supp. 2d 101, 108 (D.D.C. 2006)); see also Adams v. Groesbeck Indep. Sch.
Dist., 475 F.3d 688, 692 (5th Cir. 2007) (“An employer does not discriminate or
retaliate illegally if it has no job opening.”). Accordingly, the grant of summary
judgment on Bowers’s retaliation claim was proper.
Bowers also alleged that he was entitled to be hired for the cemetery
representative position on account of his status as a retired Master Sergeant in
the U.S. Army. However, an agency is allowed to cancel vacancy announcements
in any manner not inconsistent with law, and by doing so does not violate the
preference rights of any veterans who applied for the position. Abell v. Dep’t of
Navy, 343 F.3d 1378, 1384 (Fed. Cir. 2003). The testimony and sworn exhibits
show that the duties of the cemetery representative were consolidated into the
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Case: 09-20420 Document: 00511031963 Page: 3 Date Filed: 02/22/2010
No. 09-20420
St. Louis office and that the vacancy for the cemetery representative position in
the Houston VA Cemetery was cancelled. Accordingly, Bowers’s veteran’s rights
claim must also fail.
AFFIRMED.
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