UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 97-50544
Summary Calendar
EDWARD M. BRATTON,
Plaintiff-Appellant,
VERSUS
UNITED STATES OF AMERICA, Shelia E. Widnall,
Secretary of the United States Air Force,
Defendant-Appellee.
Appeal from the United States District Court
For the Western District of Texas
(4:97-CV-211-A)
May 22, 1998
Before WISDOM, WIENER, and DENNIS, Circuit Judges.
PER CURIAM:*
Edward M. Bratton appeals from the district court’s granting of summary judgment in this
Title VII case alleging racial discrimination and reprisal for filing EEOC complaints. He argues that
he was denied an opportunity for adequate discovery before answering the summary judgment
motion, that genuine issues of material fact precluded summary judgment on his Title VII claims,2
*
Pursuant to 5TH CIR. R. 47.5, the Court has det ermined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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
The defendants argue that Bratton waived his claim for reprisal for failing to raise it
properly during the administrative proceedings. We do not need to reach this issue because Bratton’s
reprisal claim must fail even if it was not waived.
and that the doctrine of collateral estoppel did not apply in his case. We find no reversible error.
Bratton, a black employee of Randolph Air Fo rce Base in Texas, was involved in an
altercation with Sgt . Schlidt, a white employee of the base. Bratton admits that he used a knife
during this incident. The Air Force investigated and decided to terminate Bratton’s employment.
Bratton appealed this decision to the Merit Systems Protection Board (MSPB) which reduced the
punishment to a 60 day suspension. During the Air Force investigation, Bratton filed an EEOC
complaint alleging racial discrimination. After the MSPB decision, Bratton filed two additional
EEOC complaints. The EEOC denied the complaints and affirmed the decision of the MSPB.
The Air Force turned the case over to the local U.S. Attorney who prosecuted Bratton for
his threats. Bratton was tried and convicted of assault before a magistrate judge. The district court
and this Court upheld that conviction on appeal.
Bratton filed the present suit on May 25, 1995. Before the time for discovery passed, the
defendants moved for summary judgment. Bratton’s original answer to this motion was due before
discovery was complete. But, the district court allowed bot h sides to supplement their responses
after the end date for discovery and the court withheld its decision until March 31, 1997, about five
months later. Bratton did not attempt to supplement his response with the critical information he
asserts to have received in his October 30, 1996 deposition of David Meyer. In these circumstances,
we find that the district court did not abuse its discretion in entertaining a motion for summary
judgment and requiring responses to that motion before the end of discovery.3 Bratton received
ample time to present his evidence to contradict the motion. He has offered no evidence to show that
3
We review for abuse of discretion the district court’s decision to entertain this motion
for summary judgment rather than to continue it until after discovery is complete. Liquid Drill Inc.
v. U.S. Turnkey Exploration, Inc, 48 F.3d 927, 930 (5th Cir. 1995).
2
a continuance was necessary.
The district court found that Bratton failed to make a prima facie case of racial discrimination
and reprisal for filing EEOC complaints. We agree. To establish a prima facie case of race
discrimination under Title VII, the plaintiff must show (1) that he is a member of a protected class,
(2) that he suffered adverse treatment, and (3) that similarly situated individuals, not of his protected
class, were treated more favorably.4 Bratton is a member of a protected class who has suffered
adverse employment action, but he has not offered evidence about similarly-situated individuals, not
of his protected class. Bratton directs the Court’s attention to the treatment of Sgt. Schlidt who was
involved in the fight with Bratton but not punished. Bratton also discussed a fight between Mr. Guel
and Mr. Rios after which both received minor suspensions only. Neither of these incidents is
sufficiently similar to the charges against Bratton because none of these individuals were accused of
using a dangerous weapon.5 Bratton also refers to an incident that occurred between Mr. Gann and
Mr. Perrington in which Gann was actually cut. This incident is not similar to Bratton’s because all
parties involved in the Gann-Perrington incident stated under oath that the cut was not the result of
intentional misconduct. Bratton has failed to establish a prima facie case of racial discrimination.
To establish a prima facie case of reprisal, Bratton must show (1) that he was engaged in a
statutorily protected activity, (2) that he experienced an adverse employment action contemporaneous
to or following the protected activity, and (3) that there was a causal connection between the
protected activity and the adverse employment action.6 Bratton alleges that he was retaliated against
4
McDonnell Douglas v. Green, 411 U.S. 792, 802 (1973).
5
See Green v. Armstrong Rubber Co, 612 F.2d 967, 968 (5th Cir. 1980).
6
Howlin v. Resolution Trust Co., 33 F.3d 498, 507 (5th Cir. 1994).
3
for filing his EEOC complaints and MSPB appeal. These are protected activities. We find, however,
that Bratton has failed to show the required contemporaneo us adverse employment activity.
Bratton’s initial EEOC complaints is in excess of 10 years old. This protected activity is not
sufficiently contemporaneous to the present action. Bratton’s MSPB appeal is a different matter; it
is close in time to his criminal prosecution. We find that Bratton has failed to establish a prima facie
case, however, because his criminal prosecution was not an adverse employment action.7
The judgment of the district court is AFFIRMED.
7
The Tenth Circuit Court of Appeals has held that the institution of criminal charges
can be an adverse employment action for Title VII purposes in the case of a malicious prosecution.
Berry v. Stevinson Chevrolet, 74 F.3d 980, 984 (10th Cir. 1996). This is not the case here. The
charges against Bratton resulted in his conviction.
4