Washington v. Veneman

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that this opinion should not be published and is not precedent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.