The opinion
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 12, 2009
No. 08-20712 Charles R. Fulbruge III
Summary Calendar Clerk
DONNA J ARENSDORF
Plaintiff - Appellant
v.
TIMOTHY F GEITHNER, Secretary of the Treasury
Defendant - Appellee
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:06-CV-3324
Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
At issue are numerous claims by Donna J. Arensdorf, a former Internal
Revenue Service (IRS) employee, against the IRS, arising out of its termination
of her employment. Arensdorf appeals an adverse summary judgment on all
claims.
Arensdorf was employed as an IRS revenue officer from October 1985 until
August 2005, ultimately reaching the GS-11 classification. Arensdorf received
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
No. 08-20712
poor performance reviews from her supervisor, Gibson, on various evaluations
in November 2003, and February and June 2004, including overall performance
ratings of “unacceptable” on her mid-year progress review and her annual
performance appraisal. In August 2004, she was given an “Opportunity Letter”
by Gibson. That letter established a 90-day “Performance Improvement Period”,
during which Arensdorf was to improve her performance (or face termination);
identified specific instances of Arensdorf’s shortcomings, including missed
deadlines and omissions in her case files; provided or referenced applicable IRS
standards for the deficiencies identified; and described other resources that she
could use to improve her performance.
The day after she received the Opportunity Letter, Arensdorf began a six-
month sick leave. When Arensdorf returned to work in March 2005, Gibson
immediately reissued the Opportunity Letter, giving her an additional 90 days
to improve her performance; she was provided with an “On the Job Instructor”,
to assist with case management; and her cases were reviewed on a bi-weekly
basis by Gibson and also, at times, by Gibson’s supervisor. At the end of this 90-
day period, Arnold proposed Arensdorf’s termination; the area manager
approved Arnold’s proposal; and, in August 2005, Arensdorf was terminated.
That month, Arensdorf filed a complaint with the Merit System Protection
Board (MSPB), challenging her termination. The MSPB sustained her
termination. Arensdorf appealed that decision to the full board, and it was again
sustained. She next contested the MSPB’s decision in district court.
There, Arensdorf urged claims for sex and age discrimination, sexual
harassment, hostile-work environment, and retaliation. In addition to her
discrimination-based claims, she also urged several non-discrimination-based
claims, largely consisting of challenges to the MSPB decision and the means
used to arrived at that decision; and a retaliation claim under the Whistleblower
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Protection Act, 5 U.S.C. § 2302. In September 2008, the district court granted
summary judgment to the IRS on all claims.
Arensdorf presents ten issues for review. These contentions essentially
challenge the summary judgment, which is reviewed de novo. E.g., Gibson v.
U.S. Postal Serv., 380 F.3d 886, 888 (5th Cir. 2004). “Summary judgment is
appropriate when, considering all of the allegations and evidence, and drawing
all inferences in the light most favorable to the nonmoving party, there is no
genuine issue of material fact and the moving party is entitled to judgment as
a matter of law.” Id. (citing Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th
Cir. 1994)). Additionally, we may affirm the summary judgment on any grounds
supported by the record. E.g., Berquist v. Washington Mut. Bank, 500 F.3d 344,
349 (5th Cir. 2007), cert. denied 128 S. Ct. 1124 (2008).
In a “mixed case” appeal from the MSPB (discrimination-based and non-
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, “non-discrimination claims based on the administrative record” are
reviewed with deference; we “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. Essentially for the reasons
stated by the district court in its comprehensive opinion, the judgment is
affirmed.
To establish a prima facie case of sex discrimination under Title VII of the
Civil Rights Act of 1964, Arensdorf “was required to show: (1) she is a member
of a protected class; (2) she was qualified for the position she sought; (3) she
suffered an adverse employment action; and (4) others similarly situated but
outside the protected class were treated more favorably”. Alvarado v. Texas
Rangers, 492 F.3d 605, 611 (5th Cir. 2007) (citing Willis v. Coca Cola Enters.,
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Inc., 445 F.3d 413, 420 (5th Cir. 2006)); see also 42 U.S.C. § 2000e et seq.
Arensdorf fails to establish a prima facie case of sex discrimination because,
inter alia, “she offers no evidence that she was qualified for her position”.
Arensdorf v. Paulson, No. 4:06-CV-3324 (S.D. Tex. 29 Sep. 2008) (unpublished).
The record contains ample documentation of her deficient job performance.
Arensdorf’s age-discrimination claim fails for essentially the same reason.
To establish a prima facie case of age discrimination under the Age
Discrimination in Employment Act, Arensdorf was required to show: “(1) [s]he
was discharged; (2) [s]he was qualified for the position; (3) [s]he was within the
protected class at the time of discharge; and (4) [s]he was either i) replaced by
someone outside the protected class, ii) replaced by someone younger, or iii)
otherwise discharged because of h[er] age”. Baker v. Am. Airlines, Inc., 430 F.3d
750, 753 (5th Cir. 2005) (quoting Machinchick v. PB Power, Inc., 398 F.3d 345,
350 (5th Cir. 2005)); see also 29 U.S.C. § 623 et seq. Arensdorf fails to establish
a prima facie case of age discrimination because, inter alia, she fails to show she
is qualified for her position.
Arensdorf’s sexual-harassment and hostile-work-environment claims fail
as well. To establish a prima facie case of sexual harassment under Title VII,
Arensdorf was required to show that: “(1) . . . [she] belongs to a protected class;
(2) . . . [she] was subject to unwelcome sexual harassment; (3) . . . the
harassment was based on sex; and (4) . . . the harassment affected a term,
condition, or privilege of employment”. Aryain v. Wal-Mart Stores Tex. LP, 534
F.3d 473, 479 (5th Cir. 2008) (quoting Lauderdale v. Tex. Dep’t of Criminal
Justice, Institutional Div., 512 F.3d 157, 163 (5th Cir. 2007)). Similarly, to
establish a prima facie case of hostile-work environment, Arensdorf was required
to show that: “(1) she belongs to a protected class; (2) was subjected to
unwelcome sexual [or racial] harassment; (3) the harassment was based on her
sex [or race]; (4) the harassment affected a term, condition, or privilege of her
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No. 08-20712
employment; and (5) [her employer] knew or should have known of the
harassment and failed to take remedial action”. Cain v. Blackwell, 246 F.3d 758,
760 (5th Cir. 2001) (addressing a sexually-hostile work environment); see also
Ramsey v. Henderson, 286 F.3d 264, 268 (5th Cir. 2002) (addressing a racially-
hostile work environment). Arensdorf complains, inter alia, of workplace
teasing, ridicule, and criticism. Even assuming Arensdorf satisfies the other
requirements for these claims, she has not shown the severity of harassment
necessary to establish a prima facie case of sexual harassment and a hostile-
work environment. See, e.g., Turner v. Baylor Richardson Med. Ctr., 476 F.3d
337, 348 (5th Cir. 2007) (“simple teasing, offhand comments, and isolated
incidents, (unless extremely serious) will not amount to discriminatory charges
that can survive summary judgment” (internal quotation marks and citation
omitted)).
To establish a prima facie case of retaliation, the last of her
discrimination-based claims, Arensdorf was required to “show that: (1) she
participated in an activity protected by Title VII; (2) her employer took an
adverse employment action against her; and (3) a causal connection exists
between the protected activity and the materially adverse action”. Aryain, 534
F.3d at 484 (citing McCoy v. City of Shreveport, 492 F.3d 551, 557 (5th Cir.
2007)). The protected activity cited by Arensdorf was her filing Equal
Employment Opportunity complaints involving her supervisors in July and
September 2004, approximately one year prior to her termination. Arensdorf
provided no evidence, other than her own assertions, of the requisite causal
connection. In any event, even assuming Arensdorf has established a prima
facie case of retaliation, the IRS met its shifted burden by articulating a
legitimate, non-retaliatory reason (deficient job performance) for her
termination. See id. Accordingly, to avoid summary judgment, Arensdorf was
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required to show the IRS’ reason for terminating her was pretext. See id. The
record contains substantial documentation of her deficient job performance.
Arensdorf’s other claims concern general sufficiency-of-the-evidence and
genuine-issue-of-material-fact challenges; the IRS’ claimed failure to comply
with the Civil Service Reform Act of 1978, Pub. L. No. 95-454, 92 Stat. 1111
(codified in scattered sections of 5 U.S.C.); the tapes of her MSPB hearing
containing “gaps”; and claimed retaliation by the IRS, in violation of the
Whistleblower Protection Act, 5 U.S.C. § 2302.
None of these claims has merit. The sufficiency-of-the-evidence and
general-issue-of-material fact challenges were essentially addressed supra;
Arensdorf did not meet her burden with respect to the discrimination-based
claims, and the IRS provided ample evidence of her deficient job performance.
Arensdorf’s claims based on the Civil Service Reform Act essentially
concern the means used by the IRS to arrive at the termination decision and by
the MSPB to review it. The MSPB addressed and rejected these claims as they
pertain to the IRS’ actions; and the district court conducted its review using the
appropriate, deferential standard. See Aldrup, 274 F.3d at 287; Girling Health
Care, Inc. v. Shalala, 85 F.3d 211, 215 (5th Cir. 1996). The MSPB’s decision
affirming Arensdorf’s termination is in accordance with the law and supported
by substantial evidence.
Arensdorf’s claims regarding purported “gaps” in the tapes of the MSPB
hearing were reviewed by the district court; it found the tapes to be complete.
Arensdorf has not shown clear error. E.g., Garcia v. LumaCorp, Inc., 429 F.3d
549, 553 (5th Cir. 2005).
Finally, Arensdorf devotes a few sentences to the whistleblower retaliation
claim without citations to the record or case law. Accordingly, this claim is
waived as inadequately briefed. E.g., Adams v. Unione Mediterranea Di Sicurta,
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364 F.3d 646, 653 (5th Cir. 2004) (“Issues not raised or inadequately briefed on
appeal are waived.”).
AFFIRMED.
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