Bowers v. Principi ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
March 31, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 05-20510
Summary Calendar
_____________________
CLINTON BOWERS,
Plaintiff - Appellant,
versus
ANTHONY J. PRINCIPI, SECRETARY, DEPARTMENT OF VETERAN’S AFFAIRS,
Defendants - Appellee.
_________________________________________________________________
Appeal from the United States District Court for
the Southern District of Texas, Houston
No. 4:04-CV-2201
_________________________________________________________________
Before JOLLY, DAVIS, and OWEN, Circuit Judges.
PER CURIAM:1
Clinton Bowers challenges the district court’s grant of
summary judgment, dismissing all of his claims, in favor of the
Department of Veteran’s Affairs. Bowers, pro se, brought suit
claiming that the Department of Veteran’s Affairs violated Title
VII, the Age Discrimination in Employment Act (ADEA), and the
Rehabilitation Act by refusing to hire him for five different
positions with the VA based on his gender, race, age, and
disability.2 Reviewing this summary judgment de novo, respecting
1
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this opinion should not be published and is not precedent except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.
2
Bowers is an African-American male, born in February 1947,
the same legal standards that the district court applied, see Lamar
Adver. Co. v. Cont’l Cas. Co., 396 F.3d 654, 659 (5th Cir. 2005)
(citations omitted), we affirm for the reasons stated below.
1. Under the Rehabilitation Act a plaintiff must establish
both 1) that he has a disability; and 2) that the disability
substantially limits one or more major life activities. The
district court correctly noted that Bowers has failed to put forth
any evidence, or even to allege that he is limited in any “major
life activity” as a result of his disabilities. As such he has
failed to meet his burden on any Rehabilitation Act claim and
summary judgment was appropriate.3
2. To establish a claim based on retaliation for protected
activity under Title VII, Bowers must demonstrate, among other
elements, that the adverse employment action was taken as a result
of his protected activity, i.e. “but for” his protected activity,
the adverse employment action would not have been taken. Although
who suffers from various physical conditions including diabetes and
high blood pressure. In addition, Bowers has a 50% service
connected disability rating for purposes of receiving Veteran’s
benefits. In his briefing Bowers repeatedly claims that by
specifying his age, race, and disability in its summary judgment,
the district court violated Bowers’s constitutional rights under
the Fourteenth Amendment. The district court, however, was only
setting forth the factual predicate for Bowers’s claims, i.e., how
he fits into the specific protected classes he alleges.
3
The district court correctly noted the 2003 dispute between
these parties in which we found that this plaintiff failed to
demonstrate a disability under the Rehabilitation Act. See Bowers
v. Principi, 70 Fed. Appx. 157 (5th Cir. July 3, 2003). There is
no evidence in the record to suggest a change in condition between
that case and the current one.
2
he states that his protected activity was the reason the VA refused
five times to hire him, Bowers has produced no evidence of the
required causation. His statements alone are insufficient to
survive summary judgment. As such the district court was not in
error in denying Bowers’s retaliation claims.
3. Bowers’s Title VII and ADEA claims relate to the VA’s
refusal to hire him for five separate positions at the Michael
DeBakey Veterans’ Administration Medical Center in Houston, Texas:
(1) Cemetery Representative, level GS-6, “Claim A”; (2) Cemetery
Caretaker, “Claim B”; (3) temporary Supply Technician, level GS-
2005-05, “Claim C”; (4) Supervisory Inventory Management
Specialist, level, GS-11/12, “Claim D”; and (5) File Clerk, level
GS-305-4, “Claim E”. The district court was correct in granting
summary judgment for the defendant as to each of these claims.
A. The previous employment experience outlined by Bowers
on his job applications was insufficient to meet the requirements
for the positions involved in Claim A and Claim D.4 Because both
Title VII and the ADEA require a plaintiff to demonstrate that he
was qualified for the position sought, the district court was
correct in finding that Bowers failed to put forth sufficient
4
Bowers’s argument that his military experience, as outlined
on the applications, was a sufficient substitute for the
qualification requirements of these positions fails as Bowers has
put forth no evidence demonstrating that his military experience
was equivalent to the requirements for these positions.
3
evidence to demonstrate a prima facie case as to both Claims A and
D.
B. Although the plaintiff was qualified for the position
involved in Claim B, the VA submitted affidavits demonstrating that
the process used to select employees for that position was in no
way violative of the law. Additionally, Bowers has presented no
summary judgment evidence sufficient to establish that the process
used was a pretext for discriminatory decisions. As such the
district court was correct in granting summary judgment for the VA
as to Claim B.
C. Claim C involved a position made temporarily
available when the VA employee holding the position was placed on
active military duty. Bowers was notified that he was not selected
for the position when the original employee’s military duty
terminated early and the employee returned to the position. Title
VII requires that the plaintiff suffer an adverse employment
action. Bowers has failed to establish that the cancellation of a
vacancy under these conditions constitutes an adverse employment
action taken against him since the vacancy, which was only
temporary, ended and no employment decisions were made. Further,
Bowers has offered no evidence of illegal discrimination in any of
the related events and circumstances. Consequently, summary
judgment for the VA as to Claim C is appropriate.
D. Finally, Claim E involves a position for which members
of the protected classes at issue were hired. Specifically the VA
4
hired two African-Americans, one of whom was male. As such Bowers
failed to demonstrate that he was denied the position based on his
membership in a protected class. Additionally, Bowers offered no
evidence to refute the VA’s legitimate non-discriminatory reasons
for refusing to hire him.5 Consequently, the district court was
correct in granting summary judgment for the VA as to Claim E.
For these reasons the judgment of the district court is,
AFFIRMED.
5
Specifically the VA produced evidence that Bowers was not
among the best-qualified applicants for the position.
5