IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 99-50563
Summary Calendar
_______________
LAWANDA L BRYANT,
Plaintiff-Appellant,
VERSUS
CITICORP DATA SYSTEMS, INCORPORATED,
Defendant-Appellee.
_________________________
Appeal from the United States District Court
for the Western District of Texas
(SA-97-CV-1410)
_________________________
November 18, 1999
Before SMITH, BARKSDALE, and basis of her race and that in “extending” the
PARKER, Circuit Judges. reprimand, CDSI retaliated against her for
filing a complaint.
PER CURIAM:*
II.
Lawanda Bryant appeals an adverse We review a summary judgment de novo,
summary judgment on her race discrimination employing the same standards as did the
and retaliation claims. Finding no genuine district court. See Urbano v. Continental
issue of material fact, we affirm. Airlines, Inc., 138 F.3d 204, 205 (5th Cir.),
cert. denied, 119 S. Ct. 509 (1998). Summary
I. judgment is appropriate when, viewing the
Bryant, who is black, was employed as a evidence in the light most favorable to the
customer service representative for Citicorp nonmoving party, there is no genuine issue of
Data Systems, Inc. (“CDSI”). In April 1997, material fact and the moving party is entitled
she had a confrontation with her supervisor, to judgment as a matter of law. See Celotex
Sharon Dreiling. Based on this confrontation Corp. v. Catrett, 477 U.S. 317, 322-24
and prior lack of professionalism, CDSI placed (1986); see also FED. R. CIV. P. 56(c). An
Bryant on “final corrective action.” Bryant issue is genuine if the evidence is sufficient for
sued CDSI pursuant to title VII, alleging that a reasonable jury to return a verdict for the
CDSI thereby discriminated against her on the nonmoving party. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). “The mere
existence of a scintilla of evidence in support
*
Pursuant to 5TH CIR. R. 47.5, the court has of the plaintiff’s position will be insufficient;
determined that this opinion should not be there must be evidence on which the jury could
published and is not precedent except under the reasonably find for the plaintiff.” Id. at 252.
limited circumstances set forth in 5TH CIR.
R. 47.5.4.
III. unprofessional conduct, and therefore there is
For the first time on appeal, Bryant asserts no factual dispute regarding violation of a
a claim for racial harassment separate from her work rule.
claims of discrimination and retaliation. Not
only does she present no evidence that such Bryant therefore argues that an employee of
harassment has taken place, but she is barred another race was treated differently under
from raising such a claim for the first time on similar circumstances. Loretta Walker, a
appeal. See Nissho-Iwai Co. v. Occidental Hispanic, also had a confrontation with
Crude Sales, Inc., 729 F.2d 1530, 1549 (5th Dreiling and was placed on “formal corrective
Cir. 1984). action,” a reprimand one step below that
received by Bryant. Walker’s treatment does
IV. not establish a prima facie case of
Bryant claims CDSI placed her on “final discrimination, however, because the
corrective action” because of her race. We circumstances were not “nearly identical.” See
articulated the analysis for title VII id. Walker had no history of insubordination
discrimination cases in Mayberry v. Vought or unprofessional conduct, the confrontation
Aircraft Co., 55 F.3d 1086, 1089-90 (5th Cir. did not involve a customer call, and she
1995): responded appropriately following the
confrontation.
The plaintiff must establish a prima facie
case that the defendant made an
employment decision that was motivated
by a protected factor. Once established,
the defendant bears the burden of
producing evidence that its employment
decision was based on a legitimate
nondiscriminatory reason. The burden
then shifts back to the plaintiff to prove
that the defendant’s proffered reasons
were a pretext for discrimination. But,
if the defendant has offered a legitimate
nondiscriminatory reason for its action,
the presumption of discrimination
derived from the plaintiff's prima facie
case simply drops out of the picture, and
the ultimate question is discrimination
vel non.
(Internal quotation marks and citations
omitted.) Because this case arises on summary
judgment, to prevail Bryant need only
demonstrate a genuine issue of material fact
regarding pretext.
In work-rule violation cases such as this
one, Bryant may establish a prima facie case
by showing either that she did not violate the
rule or that, if she did, other employees not of
her race who engaged in similar acts were not
punished similarly. See id. at 1090. Bryant
does not deny that she engaged in the
2
Even accepting, arguendo, Bryant's
contention that Walker's treatment established AFFIRMED.
a prima facie case, she has not established a
genuine issue of material fact as to whether
CDSI’s proffered legitimate nondiscriminatory
reason for placing her on final corrective
action (namely, the past misconduct and the
insubordination to Dreiling) was pretext.
There is no evidence either that the proffered
reason is false or that race was the real reason
for the action, both of which are required for
Bryant to prevail. See St. Mary’s Honor Ctr.
v. Hicks, 509 U.S. 502, 515 (1993);
Mayberry, 55 F.3d at 1091.
V.
To establish a prima facie case of
retaliation, Bryant must show that (1) she
participated in a statutorily protected activity,
(2) she received an adverse employment
action, and (3) a causal connection exists
between the protected activity and the adverse
action. See Mayberry, id. at 1092. Bryant
fails to establish the second component.1 She
contests an “extension” of her final corrective
action past the standard six-month period.
The evidence indicates that final corrective
action affects all CDSI employees in the same
manner and that Bryant was treated no
differently in this regard.
Further, even if her treatment were
considered an extension, such extension did
not constitute an adverse effect. Bryant
presents no evidence that she was denied any
promotion, transfer, or voluntary shift bid after
her six-month final corrective action ended.
The only demonstrated effect is that she
received only fourteen out of fifteen possible
first choice vacation days (She received her
second choice for the fifteenth day.). An
employee cannot maintain a retaliation cause
of action unless he has suffered some adverse
employment action. See Watts v. Kroger Co.,
170 F.3d 505, 511-12 (5th Cir. 1999).
1
Assuming, arguendo, that Bryant has
demonstrated the second component, she presents no
evidence of the thirdSSthat “but for” the complaint, she
would not have received the “extension.” See
Mayberry, 55 F.3d at 1092.
3