Mitchell v. Snow , 326 F. App'x 852 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 17, 2009
No. 08-20448
Summary Calendar Charles R. Fulbruge III
Clerk
IDELL MITCHELL,
Plaintiff-Appellant,
versus
JOHN W. SNOW, Secretary of the Treasury,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Texas
No. 4:06-CV-2535
Before SMITH, STEWART, and SOUTHWICK, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
Idell Mitchell appeals a summary judgment in her employment discrimi-
nation action against John W. Snow, Secretary of the Treasury (“the Treasury”).
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-20448
We affirm.
I.
In June 2003, Mitchell, a Treasury employee, received a score of 4.2 out of
5.0 in her yearly job performance review for the fiscal year ending in May 2003
(the “2003 review”).1 She asserts that the 2003 review constituted (1) discrimi-
nation on the basis of race and sex and (2) retaliation for an Equal Employment
Opportunity (“EEO”) administrative complaint she had filed nineteen months
earlier, all in violation of title VII of the Civil Rights Act of 1964 (“title VII”), 42
U.S.C. §§ 2000e et seq. She also alleges that it amounted to (3) discrimination
under the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C.
§ 621 et seq. Lastly, she claims (4) that she was subject to a hostile work envir-
onment in violation of title VII.2 The district court granted the Treasury sum-
mary judgment on all four claims.
Summary judgment is appropriate where “there is no genuine issue as to
any material fact and . . . the movant is entitled to judgment as a matter of law.”
1
That score corresponds to a description of “exceeds fully successful” under the evalua-
tion rubric used in Mitchell’s case.
2
Mitchell also appears to claim a hostile work environment under the ADEA. We have
never held that the ADEA contemplates hostile work environment claims. McNealy v. Emer-
son Elec. Co., 121 F. App’x 29, 34 n.1 (5th Cir. 2005). BecauseSSassuming arguendo that such
claims are permitted—we affirm summary judgment against Mitchell, we need not reach that
question.
Mitchell’s complaint included various tort claims and claims related to subsequent job
performance reviews, but Mitchell withdrew them in her response to the Treasury’s motion
for summary judgment. They are therefore deemed waived. See Black v. N. Panola Sch. Dist.,
461 F.3d 584, 588 n.1 (5th Cir. 2006) (“[F]ailure to pursue this claim beyond her complaint con-
stituted abandonment.”). Mitchell also asserts claims of discrimination on the basis of color
and disability. Because she raised those claims for the first time in her response to the motion
for summary judgment and has not included any argument supporting them, they are not
properly before this court. See Cutrera v. Bd. of Supervisors of La. State Univ., 429 F.3d 108,
113 (5th Cir. 2005) (“A claim which is not raised in the complaint but, rather, is raised only
in response to a motion for summary judgment is not properly before the court.”).
2
No. 08-20448
F ED. R. C IV. P. 56(c). “This Court reviews grants of summary judgment de novo,
applying the same standard as does a district court, viewing the evidence in a
light most favorable to the non-movant.” Lauderdale v. Texas Dep’t of Criminal
Justice, 512 F.3d 157, 162 (5th Cir. 2007) (quoting Fruge ex rel. Fruge v. Parker
Drilling Co., 337 F.3d 558, 560 (5th Cir. 2003)). We review questions of law de
novo.
II.
To survive summary judgment on her claims of discrimination on the basis
of sex, race, and age, Mitchell had to raise a genuine issue of material fact on
each element of the prima facie case of discrimination. Johnson v. Louisiana,
351 F.3d 616, 621-22 (5th Cir. 2003). Those four elements include showings that
the plaintiff
(1) is a member of a protected group; (2) was qualified for the posi-
tion at issue; (3) was discharged or suffered some adverse employ-
ment action by the employer; and (4) was replaced by someone out-
side his protected group or was treated less favorably than other
similarly situated employees outside the protected group.
McCoy v. City of Shreveport, 492 F.3d 551, 556 (5th Cir. 2007) (per curiam). Es-
sentially the same framework applies to both title VII and ADEA claims. Com-
pare id. (title VII) with Rachid v. Jack In The Box, Inc., 376 F.3d 305, 309 (5th
Cir. 2004) (ADEA). The district court concluded that Mitchell had satisfied the
first two prongs but not the second two.
In finding that Mitchell had failed to show an adverse employment action,
the district court employed the “ultimate employment decision” test that our pre-
cedents require: “[A]dverse employment actions include only ultimate employ-
ment decisions such as hiring, granting leave, discharging, promoting, or com-
3
No. 08-20448
pensating.”3 Mitchell responds that Burlington Northern & Santa Fe Railway
Co. v. White, 548 U.S. 53 (2006), abrogates that definition in favor of a broader
one that more easily accommodates her lower-than-expected job performance re-
view.
This is incorrect. The Burlington Northern Court held that the range of
employer actions prohibited by title VII’s anti-retaliation provisions is broader
than the range covered by its anti-discrimination provisions.4 “[O]ur precedent
recognizing only ‘ultimate employment decisions’ as actionable adverse employ-
ment actions remains controlling for title VII discrimination claims[.]” McCoy,
492 F.3d at 560. The district court’s statement of the law is therefore accurate.
The 2003 review itself, standing alone, plainly does not meet the ultimate-
employment-decision test. Mitchell suggests, in the alternative, that the failure
to award her a “step increase” in salary after the 2003 review satisfies it. The
district court found no evidence connecting Mitchell’s performance evaluation to
her compensation, however, and Mitchell has not directed us to any. We see no
evidence that the 2003 review led to her being denied a step increase, nor that
a rating higher than the 4.2 she received would have qualified her for a step in-
crease. “[I]n cases where the evidence produces no objective showing of a loss in
compensation, duties, or benefits,” no adverse employment action exists. Pegram
v. Honeywell, Inc., 361 F.3d 272, 283 (5th Cir. 2004). The district court rightly
concluded that Mitchell has not shown an adverse employment action.
As for the fourth prong, Mitchell relies on differences between the midyear
job performance feedback she received and that given to two of her younger,
3
McCoy, 492 F.3d at 559 (quoting Green v. Adm’rs of Tulane Educ. Fund, 284 F.3d 642,
657 (5th Cir. 2002)).
4
Burlington N., 548 U.S. at 67 (“For these reasons, we conclude that title VII’s sub-
stantive provision and its anti-retaliation provision are not coterminous. The scope of the anti-
retaliation provision extends beyond workplace-related or employment-related retaliatory acts
and harm.”).
4
No. 08-20448
male colleagues before their respective 2003 evaluations. Specifically, she claims
that her midyear feedback was less “clear” and “extensive” than theirs.5 Because
we sustain the district court’s finding that Mitchell failed to demonstrate any ad-
verse employment action, we affirm the summary judgment on the discrimina-
tion claims regardless of whether Mitchell showed disparate treatment. We
agree, though, with the district court that Mitchell’s feedback was not materially
“less favorable.”
III.
Mitchell argues that her score on the 2003 review was retaliation for a
separate and unrelated EEO complaint she filed in November 2001. To establish
a prima facie case of retaliation, Mitchell must show that “(1) [she] participated
in an activity protected by title VII; (2) [her] employer took an adverse employ-
ment action against [her]; and (3) a causal connection exists between the protect-
ed activity and the adverse employment action.” McCoy, 492 F.3d at 556-57.
The district court concluded that Mitchell’s 2001 EEO complaint satisfied the
first prong of this test but that she did not meet the second two.
For purposes of retaliation claims, an adverse employment action is one
that, in context, “might well have dissuaded a reasonable worker from making
or supporting a charge of discrimination.” Id. at 559 (quoting Burlington N., 548
U.S. at 68). “[N]ormally[,] petty slights, minor annoyances, and simple lack of
good manners will not create such deterrence.” Burlington N., 548 U.S. at 68.
The district court’s finding—that an employment review lower than Mit-
chell expected would not have dissuaded a reasonable employee from asserting
discrimination—is correct. The 2003 review was still quite strong, especially rel-
ative to the accompanying comments, many of them quite critical, from Mit-
5
Mitchell does not appear to assert that she was treated less favorably in the evalua-
tion itself. The district court found no evidence to support such an assertion.
5
No. 08-20448
chell’s supervisor. Mitchell’s prior EEOC complaint had been prompted by her
performance review for the fiscal year ending in May 2001, and the resolution
of that complaint involved, in part, her evaluation’s being significantly raised;
punishing her with a lowered evaluation in 2003 would have been puzzling.
Nor does Mitchell’s alleged mistreatment by her supervisors rise beyond
the level of “petty slights, minor annoyances, and simple lack of good manners
that employees regularly encounter in the workplace, and which the Supreme
Court has recognized are not actionable retaliatory conduct.” Aryain v. Wal-
Mart Stores Tex. LP, 534 F.3d 473, 485 (5th Cir. 2008). Indeed, Mitchell has not
presented a contrary argument on appeal as to that treatment. To the extent
that she alleges more serious misconduct by her superiors, she presents no evi-
dence in support.
The district court’s conclusion that Mitchell has failed to establish the nec-
essary causal connection between her EEO complaint and her 2003 evaluation
is independently adequate to justify summary judgment. Although mere tem-
poral proximity may be sufficient prima facie evidence (though not proof) of caus-
ation, the proximity must be close where there is no other such evidence. See
Strong v. Univ. HealthCare Sys., L.L.C., 482 F.3d 802, 808 (5th Cir. 2007).
We agree that the nineteen-month delay between Mitchell’s 2001 EEO
complaint and her 2003 evaluation is far too distant to establish a prima facie
case.6 See id. (three and one-half months insufficient to show causation); Clark
County Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001) (“Action taken (as here)
20 months later suggests, by itself, no causality at all.”). We note in addition
that, in the summer of 2002, Mitchell’s supervisor gave her a rating of 4.8 for the
6
Mitchell emphasizes, in response, that the 2001 complaint was not resolved until Jan-
uary 2002. Even if the relevant time period starts with resolution of a complaint, rather than
with its filing, we cannot see that this helps her showing of causation significantly. Besides,
the complaint appears to be the relevant starting point. See Strong, 482 F.3d at 807.
6
No. 08-20448
fiscal year ending in May 2002. It is highly implausible that the following year’s
rating, given in 2003, reflected retaliation for the previous year’s EEO complaint.
IV.
Mitchell reasserts her claim that she was subjected to a hostile work envir-
onment on prohibited grounds. To establish a hostile work environment under
title VII, she must prove that
(1) she belongs to a protected group; (2) she was subjected to unwel-
come harassment; (3) the harassment complained of was based on
[a prohibited ground]; (4) the harassment complained of affected a
term, condition, or privilege of employment; (5) the employer knew
or should have known of the harassment in question and failed to
take prompt remedial action.
Ramsey v. Henderson, 286 F.3d 264, 268 (5th Cir. 2002). To satisfy the fourth
part of that test, the harassment “must be sufficiently severe or pervasive to
alter the conditions of the victim’s employment and create an abusive working
environment.” Id. (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993))
(internal quotation marks omitted).
Mitchell’s evidence is insufficient to establish a prima facie case. As the
district court explained, although she satisfies the first prong, there is nothing
in the record, aside from her personal claims, that she was harassed at all. Even
assuming that she was harassed, she offers only her own subjective belief that
it was on a prohibited ground.
Not even Mitchell herself explained why she felt that her race, sex, or age
was the cause of the mistreatment she alleges. A fortiori there is no evidence
that the harassment was severe or was ignored by her supervisors, especially
considering that there is no evidence of a hostile work environment claim before
Mitchell filed her complaint. “[C]onclusory allegations, speculation, and unsub-
stantiated assertions are inadequate to satisfy the nonmovant’s burden” in op-
7
No. 08-20448
posing summary judgment. Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415,
1429 (5th Cir. 1996) (en banc). The district court was therefore correct in grant-
ing summary judgment.
AFFIRMED.
8