Terry v. Federal Bur of Prisons

Case: 23-50130 Document: 00516801361 Page: 1 Date Filed: 06/27/2023

United States Court of Appeals

for the Fifth Circuit

____________

United States Court of Appeals

Fifth Circuit

No. 23-50130

Summary Calendar FILED

____________ June 27, 2023

Lyle W. Cayce

Osiris C. Terry, Clerk

Plaintiff—Appellant,

versus

Federal Bureau of Prisons; Merrick Garland, U.S. Attorney

General,

Defendants—Appellees.

______________________________

Appeal from the United States District Court

for the Western District of Texas

USDC No. 1:21-CV-701

______________________________

Before Stewart, Duncan, and Wilson, Circuit Judges.

Per Curiam: *

In this employment discrimination case, pro se Plaintiff-Appellant

Osiris C. Terry appeals the district court’s summary judgment in favor of

Defendants-Appellees (“the Government”), the Federal Bureau of Prisons

(“BOP”) and U.S. Attorney General Merrick Garland, dismissing Terry’s

claims with prejudice. Because we hold that the district court did not err in

_____________________

*

This opinion is not designated for publication. See 5th Cir. R. 47.5.

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granting summary judgment in favor of the Government and dismissing

Terry’s claims, we AFFIRM.

I. FACTUAL & PROCEDURAL BACKGROUND

In 2014, Terry was employed with the Federal Detention Center in

Honolulu, Hawaii (“FDC Honolulu”). According to Terry, in April 2016, an

inmate became “insolent” and directed a “terroristic threat” toward him in

a visitation room. Terry states that he remained professional during the

incident but another officer, Dwayne Bautista, claims that he observed Terry

yelling at the inmate. The incident was internally investigated, but Terry

complains that he was still sent to work in the inmate’s housing unit after the

incident. Terry, who is a Black, Native American male, opines that the

incident would have been handled differently if it had involved a Caucasian

officer. Specifically, Terry alleges that that if a Caucasian officer would have

been involved, the inmate would have been transferred to a special housing

unit and the officer would not have been sent to work in the inmate’s housing

unit after the incident.

In May 2016, Terry contacted the BOP Equal Employment Office

(“EEO”) and met with a counselor. He was provided with a Notice of Right

to File in August of that year but never filed a formal EEO complaint of

discrimination or hostile work environment for the incident. He then began

seeking employment at other geographic locations within the BOP. He

applied at the Federal Correctional Institute in Bastrop, Texas (“FCIB”) for

the position of: (1) Correctional Officer (Senior Officer), vacancy

announcement number BAS-2017-0006 (“Vacancy I”); and (2) Correctional

Officer (Senior Officer), vacancy announcement number BAS-2017-0017

(“Vacancy II”).

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A. Vacancy I

The first position for which Terry applied was Vacancy I, the position

of Correctional Officer (Senior Officer) at FCIB under vacancy

announcement number BAS-2017-0006. Terry was on the Exception

Certificate for this position, along with nine other candidates. Applicants on

the Exception Certificate are eligible for noncompetitive consideration and

are exceptions to the Merit Promotion Procedures. Additionally, these

applicants are automatically sent to the selecting official for consideration. In

essence, these types of applicants are applying for a lateral transfer, rather

than a promotion.

The selecting official for this vacancy was FCIB Warden Rodney

Myers. Myers stated that he considered Terry for the position along with the

other applicants on the Best Qualified List and Exception Certificates. He

considered each candidate’s resume and reference checks and also received

input from Associate Warden Crystal Carter regarding the selection. Carter

conducted reference checks, reviewed the candidates’ resumes, and

provided recommendations to Myers for selection consideration.

Terry received references from Associate Warden David Bruce and

Lieutenant Soles from FDC Honolulu which noted that he had “average”

ratings in all categories. The position was ultimately awarded to Senior

Officer Specialist, Joseph Kuehner—a Caucasian male applicant. Kuehner

received all “above average” ratings on his reference checks during the

selection process and was chosen for the position based on these ratings in

addition to his resume. According to Myers and Carter, neither was aware of

Terry’s race, sex, or involvement in prior EEO activity during the selection

process.

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B. Vacancy II

The second position that Terry applied for was Vacancy II, the

position of Correctional Officer (Senior Officer) at FCIB under vacancy

announcement number BAS-2017-0017. Like Vacancy I, Terry was on the

Exception Certificate for this position, along with 33 other candidates. Myers

was also the Selecting Official for this position.

Myers again stated that he considered Terry for the position along

with the other applicants on the Best Qualified List and Exception

Certificates. He indicated that he considered each candidate’s resume,

reference checks, and input from Carter regarding the selection. Carter again

conducted reference checks, reviewed the candidates’ resumes, and

provided recommendations to Myers for selection consideration.

Terry received references from Associate Warden Ulrich and FDC

Honolulu Lieutenant Shawn Tabar. Ulrich rated Terry at “average” in three

categories and “above average” in three categories. Ulrich also provided a

voucher for Terry, stating that he would hire Terry for the position. Later, an

individual filling out Terry’s reference form on behalf of Tabar noted a rating

of “below average” for communication skills and “average” in all other

categories. Tabar nevertheless provided a voucher for Terry, stating that he

would hire him for that position. According to Tabar, he was unaware of any

of Terry’s prior EEO activity. Based on the reference checks Carter received

for Terry, she did not consider him a suitable candidate for the vacancy.

Carter and Myers stated again that they were not aware of Terry’s race, sex,

or prior EEO activity during the selection process. There were five total

selectees for this position, all of whom had received “above average” ratings

in all categories from both reference checks conducted during the selection

process. Among the five selectees, two had prior EEO activity, four were

male, and two were Hispanic.

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C. Terry’s Non-selection for Vacancies I & II

In January 2018, Terry learned that he was not selected for either of

the two correctional officer positions for which he applied at FCIB. Because

he was not selected for either Vacancy (I or II), Terry filed suit in federal

district court in Hawaii alleging claims of hostile work environment, race and

sex discrimination, and retaliation pursuant to Title VII of the Civil Rights

Act of 1964. See 42 U.S.C. § 2000e-16, et seq. He also advanced claims under

the No Fear Act. Terry sought $2,000,000 for “the hostile work

environment he was subjected to and discriminative behavior.”

The district court in Hawaii dismissed several of Terry’s claims for

failure to exhaust his administrative remedies and transferred his remaining

claims—those involving his non-selection for Vacancies I and II—to the

Western District of Texas where FCIB is located. After Terry’s lawsuit was

transferred, the Government moved for summary judgment on his remaining

claims. In its motion, the Government argued that (1) the court should

dismiss the BOP from the case because the only proper defendant for a

federal employee’s claim of workplace discrimination or retaliation is the

agency or department head, not the entire agency or department, (2) Terry

could not make a prima facie case of discrimination or retaliation; and (3)

Terry could not raise an issue of fact as to whether BOP’s proffered reasons

for its selection decisions were pretextual.

The magistrate judge (“MJ”) agreed and issued a report and

recommendation (“R&R”) that the district court grant summary judgment

in favor of the Government. Terry objected to the MJ’s R&R so the district

court conducted a de novo review. Thereafter, it adopted the MJ’s R&R as

its own order and dismissed Terry’s claims with prejudice for the reasons

stated therein. In its order, the district court first granted the Government’s

motion to dismiss the BOP because it was not a proper defendant to Terry’s

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Title VII claims. The court then went on to analyze his claims pertaining to

his non-selection for the two vacant positions and concluded that he failed to

make out a prima facie case: (1) for either race or sex discrimination (and also

failed to present contravening evidence as to pretext), and (2) in support of

his retaliation claim. Terry filed this pro se appeal of the district court’s

order.

II. STANDARD OF REVIEW

“We review a grant of summary judgment de novo.” Sanders v.

Christwood, 970 F.3d 558, 561 (5th Cir. 2020). “Summary judgment is proper

‘if the movant shows that there is no genuine dispute as to any material fact

and the movant is entitled to judgment as a matter of law.’” Id. (citing Fed.

R. Civ. P. 56(a)). A dispute regarding a material fact is “genuine” if the

evidence is such that a reasonable jury could return a verdict in favor of the

nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

“Conclusional allegations and unsubstantiated assertions may not be relied

on as evidence by the nonmoving party.” Carnaby v. City of Houston, 636 F.3d

183, 187 (5th Cir. 2011); see also Celotex Corp. v. Catrett, 477 U.S. 317, 324

(1986). “The party opposing summary judgment is required to identify

specific evidence in the record and to articulate the precise manner in which

that evidence supports his or her claim.” Ragas v. Tenn. Gas Pipeline Co., 136

F.3d 455, 458 (5th Cir. 1998). “A panel may affirm summary judgment on

any ground supported by the record, even if it is different from that relied on

by the district court.” Reed v. Neopost USA, Inc., 701 F.3d 434, 438 (5th Cir.

2012) (internal quotation marks and citation omitted).

III. DISCUSSION

As a preliminary matter, it appears that Terry advances at least two

arguments in his primary brief on appeal which are not properly before this

court because he failed to raise them before the district court. These

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arguments relate to his claims that: (1) “the district [c]ourt incorrectly

applied and/or considered the ‘implied false certification theory of liability’

by impermissibly weighing the evidence relative to claims for payment,

materiality, and conspiracy” and (2) the Government violated the

Uniformed Services Employment and Reemployment Rights Act of 1994.

Because neither of these arguments were adequately raised before the district

court, we will not address them on appeal. See Rollins v. Home Depot USA, 8

F.4th 393, 397 (5th Cir. 2021) (“A party forfeits an argument by failing to

raise it in the first instance in the district court—thus raising it for the first

time on appeal.”). 1 As to his remaining arguments, affording Terry’s pro se

brief a liberal construction, 2 he appeals the district court’s dismissal of his

claims related to his non-selection for Vacancies I and II. Terry alleges that

he was not selected for these positions due to his status as a Black, Native

American male (discrimination) and because of his prior EEO activity

(retaliation). We address each issue in turn.

A. Discrimination

A plaintiff may prove a claim of intentional discrimination either by

direct or circumstantial evidence. McCoy v. City of Shreveport, 492 F.3d 551,

556 (5th Cir. 2007). Circumstantial evidence cases are analyzed under the

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1

To the extent Terry attempts to appeal the district court of Hawaii’s dismissal of

his hostile work environment and related claims for failure to exhaust his administrative

remedies, or the court’s dismissal of his claims under the No Fear Act on grounds that the

Act does not create a private right of action, we do not address those issues herein because

Terry’s notice of appeal pertains exclusively to the order of the federal district court for the

Western District of Texas which only addressed Terry’s Title VII claims related to his non-

selection for Vacancies I & II and the dismissal of his claims against the BOP.

2

See Brown v. Sudduth, 675 F.3d 472, 477 (5th Cir. 2012) (“We give pro se briefs a

liberal construction.” (citation omitted)).

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burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411

U.S. 792, 802–03 (1973):

Under that framework, the plaintiff must first establish

a prima facie case of discrimination, which requires a

showing that the plaintiff (1) is a member of a

protected group; (2) was qualified for the position at

issue; (3) was discharged or suffered some adverse

employment action by the employer; and (4) was

replaced by someone outside his protected group or

was treated less favorably than other similarly situated

employees outside the protected group.

McCoy, 492 F.3d at 556. If the plaintiff successfully establishes a prima facie

case under the McDonnell Douglas framework, the burden then shifts to the

employer to articulate a legitimate, nondiscriminatory reason for its

employment action. Id. at 557. “The employer’s burden is only one of

production, not persuasion, and involves no credibility assessment.” Id. If

the employer meets its burden of production, the ultimate burden shifts back

to the plaintiff who must then prove that the employer’s proffered reason is

merely a pretext for a real discriminatory purpose. Id. To meet his burden,

“the plaintiff must rebut each nondiscriminatory . . . reason articulated by

the employer.” Id.

(1) Adverse Employment Action

Because the record adequately supports that Terry is both a member

of a protected group and is also qualified for the positions at issue, we begin

with whether he has established an adverse employment action. This court

has “analyzed the adverse employment action element in a stricter sense than

some other circuits.” Burger v. Cent. Apt. Mgmt., Inc., 168 F.3d 875, 878 (5th

Cir. 1999) (internal quotation marks and citation omitted). We have

determined “that Title VII was only designed to address

‘ultimate employment decisions, not to address every decision made by

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employers that arguably might have some tangential effect upon those

ultimate decisions.’” Id. (citation omitted). Likewise, we have concluded

that “[r]efusing an employee’s request for a purely lateral transfer does not

qualify as an ultimate employment decision [because] [s]uch a refusal is not

akin to acts such as hiring, granting leave, discharging, promoting, and

compensating.” Id. at 879 (internal quotation marks and citation omitted).

Nevertheless, we have also determined that “the denial of a

transfer may be the objective equivalent of the denial of a promotion, and thus

qualify as an adverse employment action, even if the new position would not

have entailed an increase in pay or other tangible benefits.” See Alvarado v.

Tex. Rangers, 492 F.3d 605, 614 (5th Cir. 2007)). In other words, “if the

position sought was objectively better, then the failure to award the position

to the plaintiff can constitute an adverse employment action.” Id. To

determine “whether the new position is objectively better, a number of

factors may be relevant.” Id. These include “whether the position: entails an

increase in compensation or other tangible benefits; provides greater

responsibility or better job duties; provides greater opportunities for career

advancement; requires greater skill, education, or experience; is obtained

through a complex competitive selection process; or is otherwise objectively

more prestigious.” Id. This inquiry is objective and “neither the employee’s

subjective impressions as to the desirability of the new position nor the

employee’s idiosyncratic reasons for preferring the new position are

sufficient to render the position a promotion.” Id.

Here, the district court concluded that Terry failed to establish a

prima facie case of discrimination because he could not show that he was

subjected to an adverse employment decision. We agree. As an initial matter,

because the positions for which Terry applied were considered lateral

transfers, he was required to provide evidence that the two Texas positions

were “objectively better” than his position in Hawaii. Id. On appeal, Terry

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argues that if he had been chosen for a position in Texas, he would have been

able to: buy a cheap house (as opposed to an apartment), send his kids to

better schools, get better pay, and have a better quality of life.

As an initial matter, Terry provides no argument as to why his pay

would be better in Texas. Additionally, the other factors he points to are

unrelated to whether the positions in Texas were “objectively better” than

his position in Hawaii. Instead, his arguments only relate to his “subjective

impressions as to the desirability of the new position” and thus, are not

sufficient to “render the position a promotion.” Id. He has therefore failed

to present an adequate argument as to how his non-selection for the lateral

transfers constituted an adverse employment action on the basis that the

Texas positions were “objectively better” than his position in Hawaii. Id. For

these reasons, we agree with the district court that Terry failed to carry his

burden of establishing that he was subjected to an adverse employment action

when he was not selected for the two vacant positions in Texas. Id.

Terry also argues that his reference check ratings were adverse

employment actions because he was “unfairly rated.” But his argument is

belied by the record. As the district court observed, Terry received mostly

“average” ratings, three “above average” ratings, and one “below average”

rating. 3 Even if he could show that he was “unfairly rated,” his argument still

fails because this court has explicitly held that “a low performance evaluation

alone is not an adverse employment action.” Daniel v. Bd. of Supervisors for

La. State Univ. Agric. & Mech. Coll., No. 21-30555, 2022 WL 1055578, at *6

(5th Cir. Apr. 8, 2022) (citation omitted). Moreover, even if a poor

performance evaluation could constitute an adverse employment action, it

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3

The record indicates that Terry received a total of twenty “average” ratings,

three “above average” ratings, and one “below average” rating.

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would be a stretch for us to conclude that one below average rating out of

twenty-one total ratings could qualify as such. For these reasons, we agree

with the district court that Terry’s ratings did not qualify as adverse

employment actions. Id.

(2) Similarly Situated Candidates

We likewise agree with the district court that Terry has failed to show

that the candidates that were selected for the two positions were “similarly

situated” to him because they were in fact, superior candidates. See McCoy,

492 F.3d at 556. As the district court reasoned, the candidates selected for

both positions received higher reference ratings than Terry in all categories

and the selected candidates’ resumes indicated superior qualifications to

Terry’s. In addition, the selected candidate for Vacancy I had eight more

years of employment experience with the BOP than Terry and all five of the

selectees for Vacancy II had more experience in correctional facilities than

Terry. Thus, Terry has failed to show that the candidates chosen were

“similarly situated” to him. Id. For these same reasons, Terry cannot raise a

genuine issue of material fact by showing that he was “clearly better

qualified” than the selected candidates. See Walther v. Lone Star Gas, Co.,

952 F.2d 119, 123 (5th Cir. 1992) (noting that a plaintiff can raise a genuine

issue of material fact sufficient to survive summary judgment by presenting

evidence that he was “clearly better qualified” than the candidate outside of

his protected class that was ultimately hired).

In conclusion, we agree that Terry has failed to present a prima facie

case of discrimination with respect to his gender or his race. See McCoy, 492

F.3d at 556. Because he fails to do so, we need not continue our analysis under

the McDonnell Douglas burden-shifting framework by addressing the

Government’s arguments related to its legitimate, nondiscriminatory

reasons for its hiring decisions. Id. at 557 (explaining that, under the

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McDonnell Douglas framework, the burden does not shift “to the employer to

articulate a legitimate, nondiscriminatory reason for its employment action”

until the “the plaintiff successfully establishes a prima facie case” of

discrimination).

B. Retaliation

To the extent that Terry adequately briefs an argument with respect

to retaliation, his claim on this issue also fails. “To establish a prima facie

case of retaliation, an employee must show ‘(1) [he] engaged in a protected

activity; (2) ‘[he] suffered an adverse employment action’; and (3) ‘a causal

connection exists between the protected activity and the adverse

employment action.’” See Saketkoo v. Adm’rs of Tulane Educ. Fund, 31 F.4th

990, 1000 (5th Cir. 2022) (quoting Brown v. Wal-Mart Stores E., L.P., 969

F.3d 571, 577 (5th Cir. 2020)). If the plaintiff successfully establishes his

prima facie case, “the employer has the burden of production to provide a

legitimate, non-discriminatory reason for the adverse employment action.”

Id. at 1000 (internal quotation marks and citation omitted). “If the employer

meets this burden, then the plaintiff has the burden to prove that the

proffered reason is pretextual.” Id. (citation omitted). “[T]he burden of

persuasion remains with the employee throughout” the analysis. Id. (citation

omitted).

Because we have already held supra that Terry has failed to present

evidence that he was subjected to an adverse employment action, we likewise

hold that he cannot establish a prima facie case of retaliation. Id. Even if he

had established an adverse employment action, we agree with the district

court that he cannot show a causal connection between his protected EEO

activity and his non-selection for Vacancies I and II because he has failed to

present evidence that either Myers or Carter was aware of his involvement in

prior EEO activity. Id. Moreover, even if Terry could show they were aware,

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he fails to point to evidence in the record that his EEO activity was a factor

considered in his non-selection for the two vacancies. For these reasons, we

hold that Terry has failed to establish a prima facie case of retaliation. Id.

In sum, because Terry has failed to provide competent summary

judgment evidence in support of his claims that he was discriminated against

on account of race or sex, or that he was retaliated against because of his prior

protected EEO activity, when he was not selected for the two vacant

positions in Texas, we hold that the district court did not err in rendering

summary judgment in favor of the Government with respect to his Title VII

claims.(4)(5)

IV. CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s summary

judgment in favor of the Government, dismissing Terry’s claims with

prejudice.

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4

We also affirm the portion of the district court’s order granting the Government’s

motion to dismiss the BOP from this suit because it was not a proper defendant to Terry’s

Title VII claims. See Skoczylas v. Fed. Bureau of Prisons, 961 F.2d 543, 544 (5th Cir. 1992)

(“The statute requires that a Title VII suit against the federal government name as

defendant ‘the head of the department, agency, or unit, as appropriate.’” (quoting 42

U.S.C. § 2000e–16(c))).

5

To the extent that Terry attempts to make an argument related to the district

court’s transfer of venue from Hawaii to Texas, he has waived any such argument for

failure to adequately brief it. See N. Cypress Med. Ctr. Operating Co., Ltd. v. Cigna

Healthcare, 952 F.3d 708, 711 n.3 (5th Cir. 2020) (“Failure of an appellant to properly argue

or present issues in an appellate brief renders those issues abandoned.”).

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