The opinion
United States Court of Appeals
Fifth Circuit
F I L E D
In the May 11, 2006
United States Court of Appeals Charles R. Fulbruge III
for the Fifth Circuit Clerk
_______________
m 05-30677
Summary Calendar
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VIVIAN O. PIPER,
Plaintiff-Appellant,
VERSUS
ANN VENEMAN,
SECRETARY, UNITED STATES DEPARTMENT OF AGRICULTURE,
Defendant-Appellee.
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Appeal from the United States District Court
for the Eastern District of Louisiana
m 2:04-CV-960
_____________________________________
Before SMITH, GARZA, and PRADO, Vivian Piper appeals a summary judgment
Circuit Judges. in favor of her employer, the Department of
Agriculture (“USDA”), on her claims of
PER CURIAM:* employment discrimination under title VII,
* *
Pursuant to 5TH CIR. R. 47.5, the court has (...continued)
determined that this opinion should not be pub- lished and is not precedent except under the limited
(continued...) circumstances set forth in 5TH CIR. R. 47.5.4.
42 U.S.C. § 2000e et seq. We affirm. relevant actions.2
I. The USDA moved for summary judgment,
When she filed her initial complaint with the arguing that, on each of her claims, Piper had
Equal Employment Opportunity Commission not presented evidence sufficient to support a
(“EEOC”), Piper, a fifty-four-year-old black finding of discrimination. The USDA asserts
woman, had been employed at the National that Piper was declared ineligible to apply for
Finance Center (“NFC”), a division of the the temporary Supervisory Systems Accoun-
United States Department of Agriculture tant position because she was employed out-
(“USDA”), for twenty-nine years and held the side the area of consideration, and further
position of Lead Systems Accountant. After notes that she suffered no disparate treatment
exhausting available administrative remedies in this regard because all employees outside
on her employment discrimination claims, Pi- the area of consideration were deemed ineligi-
per sued the USDA. On the USDA’s motion, ble to apply.3
the district court dismissed, on timeliness
grounds, the claims asserted in the initial com- The USDA argues that Piper was not se-
plaint. Piper, however, had filed an Amending lected for the permanent promotion to Super-
and Supplemental Complaint asserting ad- visory Systems Accountant because Dennis
ditional claims that were ripe for federal court Jack, the selectee, was the most qualified
review; those claims thus survived the motion
to dismiss.
2
Although she alleges age discrimination, Piper
In her Amending and Supplemental Com- does not claim a violation of the Age Discrimina-
plaint, as clarified by her Second Amending tion in Employment Act (“ADEA”), 29 U.S.C. §
and Supplemental Complaint, Piper alleges 621 et seq. She bases her claims solely on title
she was denied the opportunity to compete for VII, which does not list age as a protected charac-
a temporary position as Supervisory Systems teristic. Accordingly, we do not consider Piper’s
Accountant, subsequently was not selected for allegations of age discrimination with regard to the
USDA’s determination that she was ineligible to
a promotion to the permanent position of Su-
apply for the temporary Supervisory Systems
pervisory Systems Accountant, and was re- Accountant position, its failure to select her for a
moved from the Leave Donor Program1 on ac- permanent promotion, or its removal of her from
count of age, sex, and race and in retaliation the Leave Donor Program.
for her history of filing complaints with the
EEOC. She accordingly asserts that the 3
The temporary position, as officially adver-
USDA violated title VII when it took the tised, limited eligibilitySSalbeit mistakenlySSto
employees within the Controller Operations Divi-
sion (“COD”) of the NFC; Piper was not employed
in that division. The USDA contends that the fact
that the individual responsible for posting the
1
The Leave Donor Program is offered to NFC position erred in limiting eligibility to COD em-
employees who meet certain criteria and who have ployees is of no consequence. The USDA asserts
exhausted their sick and voluntary annual leave. that regardless of the error, it was the posted
The program allows participants to receive addi- limitation, and not Piper’s age, sex, race, or history
tional days of paid leave through the donations of of filing EEOC claims, that led the department to
voluntary annual leave by other employees. consider her ineligible for the position.
2
applicant. Additionally, the department asserts terson v. Mobil Oil Corp., 335 F.3d 476, 487
that Piper was not “removed” from the Leave (5th Cir. 2003).
Donor Program, but rather, her participation in
that program merely expired according to the Absent direct evidence, to establish a prima
medical documentation she had provided. facie case of employment discrimination under
Finally, the USDA asserts that even if Piper title VII, a plaintiff must show that “(1) he
had been “removed” from the Leave Donor belongs to a protected group; (2) he was quali-
Program, her removal does not qualify as an fied for the position sought; (3) he suffered an
adverse employment action necessary to sup- adverse employment action; and (4) he was re-
port a prima facie case of discrimination, placed by [or passed over in favor of] someone
because it was not an “ultimate employment outside the protected class.” Price v. Fed.
decision.” Express Corp., 283 F.3d 715, 720 (5th Cir.
2002) (citing McDonnell Douglas Corp. v.
The district court granted summary judg- Green, 411 U.S. 792, 802-05 (1973)). If the
ment, dismissing all of Piper’s claims with pre- plaintiff succeeds in establishing his prima fa-
judice. Piper appeals, challenging only the cie case, under the McDonnell Douglas frame-
summary judgment on her claim that the work “a presumption of discrimination arises
USDA declined to promote her on account of and . . . the burden shifts to the defendant to
age, sex, and race.4 produce a legitimate, nondiscriminatory justi-
fication for its actions.” Id.
II.
Rule 56(c) of the Federal Rules of Civil The defendant can satisfy this burden “by
Procedure states that summaryjudgment “shall producing evidence, which, taken as true,
be rendered forthwith if the pleadings, deposi- would permit the conclusion that there was a
tions, answers to interrogatories, and admis- nondiscriminatory reason for the adverse ac-
sions on file, together with affidavits, if any, tion.” Id. (internal quotations and citations
show that there is no genuine issue as to any omitted). If the defendant carries this burden
material fact and that the moving party is en- successfully, “the mandatory inference of dis-
titled to a judgment as a matter of law.” FED. crimination created by the plaintiff’s prima
R. CIV. P. 56(c). We review a grant of sum- facie case drops out.” Id.
mary judgment de novo, using the same crite-
ria as employed by the district court. Pat- The plaintiff then has the opportunity to
demonstrate that the defendant’s proffered
reason for the adverse action is pretextual. Id.
4
Read liberally, Piper’s brief argues only that “On summary judgment, in this third step, the
the USDA’s contention that Jack was hired be- plaintiff must substantiate his claim of pretext
cause of his superior qualifications is pretextual. through evidence demonstrating that discrimi-
She makes no argument regarding the temporary nation lay at the heart of the employer’s deci-
Supervisory Systems Accountant position or the sion.” Id. With regard to a nonpromotion
Leave Donor Program; she makes no argument re- claim, in this step the plaintiff must show that
garding retaliation, even with respect to her non-
he is “clearly better qualified [than the indi-
promotion claim. “It has long been the rule in this
vidual selected] for the position in question.”
circuit that any issues not briefed on appeal are
waived.” United States v. Thibodeaux, 211 F.3d
Odom v. Frank, 3 F.3d 839, 845 (5th Cir.
910, 912 (5th Cir. 2000). 1993). If the plaintiff can demonstrate that the
3
defendant’s asserted justification for the action not promoted, which is an adverse employ-
is pretextual, ment action, see Felton v. Polles, 315 F.3d
470, 486 (5th Cir. 2002); and (4) the person
this showing, coupled with a prima facie selected for the position is a man.
case, may permit the trier of fact to con-
clude that the employer discriminated The USDA states that it promoted Jack in-
against the plaintiff without additional evi- stead of Piper because he was the most quali-
dence. Reeves v. Sanderson Plumbing fied applicant. According to the USDA, a Su-
Prods., Inc., 530 U.S. 133, 148 (2000). pervisory Systems Accountant is responsible
However, such a showing will not always “for managing, through subordinate sections,
be enough to prevent summary judgment, activities relating to the reconciliation, evalua-
because there will be cases where a plaintiff tion, and preparation of financial and account-
has both established a prima facie case and ing reports required by the Department of the
set forth sufficient evidence to reject the Treasury . . . and other agencies serviced by
defendant’s explanation, yet “no rational the NFC.” Because of his “extensive experi-
factfinder could conclude that the action ence,” including his service as Section Chief
was discriminatory.” Id. Whether sum- and Branch Chief in the Financial Reporting
mary judgment is appropriate depends on Branch of the Controller Operations Division
numerous factors, including “the strength of the NFC, the selecting official deemed Jack
of the plaintiff’s prima facie case, the pro- “an expert in financial government reporting”
bative value of the proof that the employ- and thus superiorly qualified for the position.
er’s explanation is false, and any other evi-
dence that supports the employer’s case It is Piper’s burden to rebut this asserted
and that properly may be considered.” Id. nondiscriminatory justification, and she has
at 148-49. brought forth no evidence indicating that she
is “clearly better qualified” than is Jack to
Price, 283 F.3d at 720. serve as a Supervisory Systems Accountant.
Accordingly, the summary judgment is AF-
As we have noted, Piper cannot success- FIRMED.
fully state a claim of age discrimination under
title VII, because age is not a characteristic
protected by the statute. Additionally, she fails
to establish a prima facie case of race dis-
crimination, because the person selected for
the promotion in her stead, Jack, is also black.
Piper has, however, successfully established
a prima facie case of sex discrimination: (1)
She is a member of a protected class (women);
(2) she was qualified for the position sought,
as evidenced by the NFC’s placement of her,
along with five other individuals, on the Roster
of Best Qualified for the permanent Supervi-
sory Systems Accountant position; (3) she was
4