Perez v. Brown

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-50658
Summary Calendar
DAVID PEREZ,
Plaintiff-Appellant,
versus
JESSE BROWN, Secretary, Department of Veterans Affairs,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Texas
(SA-97-CV-289)
January 3, 2000
Before POLITZ, WIENER, and DENNIS, Circuit Judges.
POLITZ, Circuit Judge:*
David Perez seeks review of an adverse summary judgment in his
employment discrimination action. For the reasons assigned, we affirm.
BACKGROUND
Perez sued Jesse Brown, Secretary of the Department of Veterans Affairs,
alleging discrimination on the basis of national origin and retaliation for prior
*
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 R. 47.5, the Court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
protected union activity. Both parties consented to proceed before a magistrate
judge. In granting Brown a summary judgment, the court concluded that Perez’s
claim regarding his promotion to foreman and subsequent resignation was time-
barred. Because this claim of discriminatory “demotion” was a discrete event, the
court further held that the continuing violation theory did not revive the untimely
claim.1 The court also concluded that Perez’s mal-assignment contention was
insufficient to establish a prima facie claim of retaliatory discrimination because
being forced to do work that was outside of his job description did not rise to the
level of an adverse employment action. Finally, the court granted summary
judgment against Perez on his hostile work environment claims, concluding that
Perez failed to state a prima facie case of retaliatory hostile work environment. In
so doing, the court rejected Perez’s contention that his demotion and mal-
assignment could serve as evidence to establish a hostile work environment.2 The
court also determined that Perez’s other allegations of discriminatory conduct were
1
See Huckabay v. Moore, 142 F.3d 233 (5th Cir. 1998) (concluding that plaintiff’s
demotion was a discrete event that should have put defendant on notice that his cause of
action had accrued and that his demotion could not constitute a continuing violation).
2
The court relied on Huckabay, stating that such discrete events were not the type of
day-to-day harassment that could be considered in a hostile work environment claim.
2
insufficient to establish a prima facie case of hostile work environment.3
Perez appeals the district court’s decision, claiming that it erred in granting
summary judgment on the ground that he failed to establish a claim for retaliatory
hostile work environment or national origin hostile work environment, and in
concluding that the continuing violation doctrine was not applicable to his claims
for retaliatory hostile work environment or national origin hostile work
environment.
ANALYSIS
Summary judgment is appropriate when the record discloses that there is no
genuine issue as to any material fact and that the movant is entitled to judgment as
a matter of law.4 In determining whether summary judgment was appropriate, we
conduct a de novo review, judging the facts in the light most favorable to the non-
movant.5
Having considered the briefs and the record on appeal, we agree with the
3
Specifically, the court held that Perez failed to show how any alleged retaliatory
harassment he suffered was connected to his engaging in prior protected activities. The court
also concluded that there was insufficient evidence to establish a prima facie case for
national origin hostile work environment.
4
Fed. R. Civ. P. 56(c); City of Arlington v. FDIC, 963 F.2d 79 (5th Cir.), cert. denied
sub nom., 506 U.S. 1021 (1992).
5
Horton v. City of Houston, 179 F.3d 188 (5th Cir.), cert. denied, No. 99-546, 1999
WL 784346 (U.S. Nov. 29, 1999).
3
district court regarding Perez’s time-barred “demotion” claim and his failure to
establish a prima facie case for retaliatory discrimination on his mal-assignment
claim. We also concur with the trial court’s conclusion that his demotion and mal-
assignment claims cannot constitute evidence of continuing violations because they
are considered “discrete” under Huckabay. Finally, we find no reversible error
regarding the district court’s determination that Perez failed to establish a prima
facie case regarding his hostile work environment claims. Because there is no
genuine issue of material fact that would allow Perez to proceed to trial on any of
his claims, we hold that summary judgment was proper.
The judgment appealed is AFFIRMED.
4