The opinion
Case: 12-60883 Document: 00512403728 Page: 1 Date Filed: 10/10/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 10, 2013
No. 12-60883
Summary Calendar Lyle W. Cayce
Clerk
MICHAEL L. HASKINS,
Plaintiff-Appellant,
v.
R. JAMES NICHOLSON, Former Secretary, Department of Veteran Affairs;
GORDON H. MANSFIELD, Acting Secretary, Department of Veteran Affairs,
Defendants-Appellees
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:07-CV-738
Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM:*
Michael L. Haskins moves to proceed in forma pauperis (IFP) on appeal
from the district court’s dismissal of his “mixed case appeal” in which he sought
review of a ruling by the Merit System Protection Board (MSPB) that upheld his
termination from a Veterans Affairs (VA) facility in Jackson, Mississippi.
Haskins was terminated from the VA after an internal investigatory board found
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-60883
that the VA had proven the following charges by a preponderance of the
evidence: (1) lack of candor, (2) inappropriate use of supervisory authority,
(3) failing as a supervisor to uphold and to adhere to VA and Medical Center
policies, (4) seeking unauthorized external assistance to modify or delete Medical
Center information contained in a VA computer system, and (5) creating a
hostile work environment for staff. The charges stemmed from Haskins’s affair
with Karen Blocker, a coworker; his lying under oath about the affair; his
adversarial relationship with Karen Blocker’s husband, who also worked in the
VA; his inappropriate email correspondence with other female coworkers; and
his asking a non-VA employee how to permanently erase email messages from
his VA computer. Haskins filed a complaint with the MSPB challenging his
termination. The MSPB affirmed his termination. Haskins appealed that
decision to the full board, and it was again affirmed. He then contested the
MSPB’s decision in district court and raised race and sex discrimination claims
and retaliation claims. Haskins also sought review of the adverse decision by
the Equal Employment Opportunity Commission (EEOC) on his hostile work
environment claim.
Haskins challenges the district court’s dismissal of his complaint. He
argues here that the district court erred in determining that the MSPB’s
decision was based on substantial evidence and erred in dismissing his
discrimination, retaliation, and hostile work environment claims.
By moving to proceed IFP, Haskins challenges the certification that his
appeal is not taken in good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th
Cir. 1997). His IFP request “must be directed solely to the trial court’s reasons
for the certification decision,” id., and this court’s inquiry “is limited to whether
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the appeal involves legal points arguable on their merits (and therefore not
frivolous).” Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983) (internal
quotation marks omitted).
In a “mixed-case” appeal from the MSPB, meaning a case that also
includes discrimination-based claims, “discrimination claims raised
administratively” are reviewed de novo. Aldrup v. Caldera, 274 F.3d 282, 285-86
(5th Cir. 2001) (citing 5 U.S.C. § 7703(c) (regarding judicial review of MSPB
decisions)). On the other hand, we review “non-discrimination claims based on
the administrative record, and will uphold the [MSPB]’s determinations unless
they are clearly arbitrary and capricious, unsupported by substantial evidence
or otherwise not in accordance with law.” Id. at 287.
With regard to the MSPB’s decision, Haskins has not shown that the
decision was unsupported by substantial evidence. See id. He argues only that
his supervisor’s and other unidentified witnesses’ testimonies were not credible.
But the “evaluation of witness credibility is within the discretion of the [MSPB]
and . . . in general, such evaluations are virtually unreviewable on appeal.”
Kahn v. Dep’t of Justice, 618 F.3d 1306, 1313 (Fed. Cir. 2010) (internal quotation
marks omitted). Haskins set forth no specific argument or evidence indicating
that the five reasons for his termination were false or unsubstantiated.
Further, Haskins has not shown that the district court erred in dismissing
his race and sex discrimination claims. Title VII prohibits discrimination in
employment decisions on the basis of “race, color, religion, sex or national
origin.” 42 U.S.C. § 2000e-2(a)(1). To establish a prima facie case of
discrimination, a plaintiff must show that he is a member of a protected class,
is qualified for the job, suffered an adverse employment action by the employer,
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and was either replaced by someone outside his protected group or received less
favorable treatment than a similarly situated individual outside the protected
group. McCoy v. City of Shreveport, 492 F.3d 551, 556 (5th Cir. 2007).
Once a plaintiff establishes a prima facie case, the burden shifts to the
defendant to articulate a legitimate, nondiscriminatory reason for the challenged
employment action. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03
(1973); McCoy, 492 F.3d at 557. If the defendant succeeds in doing so, then the
burden shifts back to the plaintiff to show that the defendant’s reason is
pretextual. McCoy, 492 F.3d at 557.
Haskins does not attempt to satisfy this burden. He does not address the
district court’s findings that he failed to identify a comparable employee who was
treated favorably or that the defendants provided legitimate, non-pretextual
reasons in connection with his race discrimination claim. Because he makes
only general, conclusory allegations in connection with his race and sex
discrimination claims, he has not shown that the district court erred in
dismissing these claims. See id. at 556-57.
To establish a prima facie case of retaliation, “a plaintiff must show that
(1) she participated in a Title VII protected activity, (2) she suffered an adverse
employment action by her employer, and (3) there is a causal connection between
the protected activity and the adverse action.” Stewart v. Miss. Transp. Comm’n,
586 F.3d 321, 331 (5th Cir. 2009) (citing Aryain v. Wal-Mart Stores Tex. LP, 534
F.3d 473, 484 (5th Cir. 2008)). Once a plaintiff establishes a prima facie case,
the burden shifts to the defendant to articulate a legitimate, nonretaliatory
reason for the challenged employment action. McDonnell Douglas, 411 U.S. at
802-03; McCoy, 492 F.3d at 557. If the defendant succeeds in doing so, then the
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burden shifts back to the plaintiff to show that the defendant’s reason is a
pretext for retaliation. McCoy, 492 F.3d at 557.
Haskins argues that he has established a prima facie case of retaliation
because the VA terminated him after he filed a complaint with the EEOC.
However, even if he has stated a prima facie claim, as the district court assumed,
Haskins has not set forth any argument or evidence showing that the VA’s five
reasons for his discharge were pretextual; thus, he has not shown that the
district court erred in dismissing his retaliation claim based on his termination.
See McDonnell Douglas, 411 U.S. at 802-03. Likewise, Haskins has not shown
that the VA’s reason for cancelling his medical benefits was pretextual; his
benefits were cancelled because he was terminated.
We find that Haskins has waived review of his hostile work environment
claim because he has failed to address the district court’s determination that his
appeal from the EEOC’s decision, which denied his hostile work environment
claim, was untimely. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993)
(stating that even pro se litigants are required to brief arguments in order to
preserve them); see also Hughes v. Johnson, 191 F.3d 607, 613 (5th Cir. 1999)
(stating that issues not raised in the brief are waived). That is, Haskins argues
only the merits of his hostile work environment claim and does not address the
timeliness issue. Similarly, Haskins fails to adequately brief any error
connected to the charge that he was absent without leave (AWOL) or his claim
that the VA’s penalty was unreasonable or overly harsh. Those arguments have
been abandoned. See Yohey, 985 F.2d at 224-25; Hughes, 191 F.3d at 613.
In light of the foregoing, Haskins has not demonstrated that he will raise
a nonfrivolous issue on appeal. See Howard,707 F.2d at 219-20. Accordingly,
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Haskins’s motion to proceed IFP is denied. Because his appeal is frivolous, his
appeal is dismissed. See 5TH CIR. R. 42.2; Baugh, 117 F.3d at 202 n.24.
IFP MOTION DENIED; APPEAL DISMISSED.
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