Patrick v. Principi

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

____________________

No. 01-50319

Summary Calendar
____________________

EMMA PATRICK

Plaintiff - Appellant

v.

ANTHONY J. PRINCIPI, SECRETARY OF THE U.S. DEPARTMENT OF
VETERANS AFFAIRS

Defendant - Appellee

_________________________________________________________________

Appeal from the United States District Court
for the Western District of Texas, Waco Division
No. W-00-CA-98
_________________________________________________________________
October 5, 2001

Before KING, Chief Judge, and HIGGINBOTHAM and BENAVIDES, Circuit
Judges.

PER CURIAM:*

In district court, Plaintiff-Appellant Emma Patrick asserted

racial discrimination and retaliation claims pursuant to Title

VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §

*
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that this opinion should not be published and is not precedent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.
2000e et seq.. Patrick appeals from the district court’s grant

of summary judgment in favor of Defendant-Appellee Anthony J.

Principi, Secretary of the United States Department of Veterans

Affairs (the “Secretary”). For all the following reasons, we

AFFIRM the judgment of the district court.

I. Factual and Procedural History

Patrick, an African-American, is currently employed by the

United States Department of Veterans Affairs at the Temple

Integrated Care Facility as a “Nurse II.” On March 11, 1996,

Patrick was not selected for a position as an Evening/Relief

Nursing Supervisor. On April 24, 1996, Patrick contacted an

Equal Employment Opportunity (“EEO”) Counselor to pursue an

informal employment discrimination complaint regarding the March

11 non-selection. This complaint never matured into a law suit.

Meanwhile, on March 27, 1996, the Nurse Professional

Standards Board (“NPSB”) evaluated Patrick’s annual proficiency

report and personnel file for a possible promotion to the grade

of “Nurse III.” For promotion to Nurse III, a candidate’s record

must satisfy numerous, specific criteria listed in the Nurse

Qualifications Standards. The NPSB determined that Patrick did

not meet Nurse III criterion 2b and criterion 3 and requested

supplemental information regarding Patrick’s qualifications.1 On

1
Criterion 2b requires “demonstrated ability to initiate
and lead interdisciplinary groups.” Criterion 3 requires

2
May 17, 1996, Patrick’s nurse manager submitted supplemental

information concerning Patrick’s qualifications on Nurse III

criteria 2b and 3 to the NPSB as requested. On June 5, 1996, the

NPSB re-evaluated Patrick for promotion to Nurse III. Despite

the supplemental information, the NPSB recommended against

promotion. On that same date, the NPSB also found two other

Nurse III candidates ineligible for promotion.

Patrick filed suit in district court against the Secretary.

Patrick asserted that the NPSB’s failure to promote her to Nurse

III was the result of unlawful racial discrimination and was in

retaliation for her April 24 informal EEO complaint (regarding a

separate matter). The Secretary filed a motion for summary

judgment which the district court granted on February 8, 2001.

The district court concluded that Patrick failed to establish a

prima facie case of employment discrimination and of retaliation.

Furthermore, the district court found that Patrick did not rebut

the Secretary’s legitimate, non-discriminatory reason for

declining to promote Patrick to Nurse III.

II. Summary Judgment Standard of Review

We review a grant of summary judgment de novo, applying the

same standards as the district court. See Chaney v. New Orleans

Pub. Facility Mgmt., Inc., 179 F.3d 164, 167 (5th Cir. 1999).

“[s]ignificant and sustained contributions to the nursing
profession.”

3
Summary judgment is proper when “there is no genuine issue as to

any material fact and [] the moving party is entitled to a

judgment as a matter of law.” FED. R. CIV. P. 56(c). While we

view the evidence in a light most favorable to the non-movant,

see Coleman v. Houston Indep. Sch. Dist., 113 F.3d 528, 533 (5th

Cir. 1997), in order to avoid summary judgment, the non-movant

must go beyond the pleadings and her own affidavits and come

forward with specific facts indicating a genuine issue for trial,

see Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).

If the evidence is such that a reasonable jury could return

a verdict for the non-movant, there is a genuine issue of

material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248 (1986). Therefore, if the non-movant fails to establish

facts in support of an essential element of her prima facie

claim, summary judgment is appropriate. See Celotex, 477 U.S. at

322-23.

III. Title VII Discrimination

A. The Law

Under Title VII, it is unlawful for an employer to make an

adverse employment decision concerning any individual on the

basis of the individual’s race. 42 U.S.C. § 2000e-2(a)(1). We

analyze Title VII claims under the well-established framework of

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under

4
McDonnell Douglas, the Title VII plaintiff bears the initial

burden of proving a prima facie case of discrimination by a

preponderance of the evidence. See id. at 802; Shackelford v.

Deloitte & Touche, L.L.P., 190 F.3d 398, 404 (5th Cir. 1999). To

establish a prima facie case of discriminatory non-promotion, the

plaintiff must show that: (1) she belongs to a protected group,

(2) she was qualified for the position in question, (3) she was

not promoted, and (4) the position was filled by someone outside

the protected class. Oden v. Oktibbeha County, 246 F.3d 458, 468

(5th Cir. 2001). See also Blow v. City of San Antonio, 236 F.3d

293, 296 (5th Cir. 2001) (citing Tex. Dept. of Cmty. Affairs v.

Burdine, 450 U.S. 248, 252-53 (1981)).

If the plaintiff establishes a prima facie case of

discrimination, the burden shifts “to the employer to articulate

some legitimate, nondiscriminatory reason for the employee’s

rejection.” McDonnell Douglas, 411 U.S. at 802; see also

Shackelford, 190 F.3d at 404. At that point, “the McDonnell

Douglas framework – with its presumptions and burdens –

disappear[s], and the sole remaining issue [is] discrimination

vel non.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.

133, 142-43 (2000) (citations and quotation marks omitted).

However, if the plaintiff shows that the employer’s proffered

justification is mere pretext, that showing, coupled with the

prima facie case, is sufficient to survive summary judgment in

most cases. Id. at 148.

5
 “Although intermediate evidentiary burdens shift back and

forth under this framework, ‘[t]he ultimate burden of persuading

the trier of fact that the defendant intentionally discriminated

against the plaintiff remains at all times with the plaintiff.’”

Id. at 143 (quoting Burdine, 450 U.S. at 253). To carry that

burden, the plaintiff must produce substantial evidence of

pretext: “Evidence that the proffered reason is unworthy of

credence must be enough to support a reasonable inference that

the proffered reason is false; a mere shadow of doubt is

insufficient.” Bauer v. Albemarle Corp., 169 F.3d 962, 967 (5th

Cir. 1999)(quoting E.E.O.C. v. La. Office of Cmty. Servs., 47

F.3d 1438, 1444 (5th Cir. 1995)). This court has consistently

held that an employee’s “subjective belief of discrimination”

alone is not sufficient to warrant judicial relief. Bauer, 169

F.3d at 967.2

B. The Analysis

The parties do not dispute that Patrick belongs to a

protected group and was the subject of an adverse employment

decision. Thus, Patrick satisfies elements one and three of her

prima facie case of discriminatory non-promotion. Neither party

presents evidence on whether the position was filled by a non-

African American, but since all the proficiency reports in the

2
Even though Bauer was decided before Reeves, nothing in
Reeves abrogates Bauer’s requirement of substantial evidence to
support a claim of pretext. See Auguster v. Vermilion Parish
Sch. Bd., 249 F.3d 400, 403 n.3 (5th Cir. 2001).

6
record indicate that the nurses promoted to Nurse III were

Caucasian, we can assume that Patrick satisfies this element as

well. Thus, Patrick has established three out of the four

elements necessary for a prima facie case of discriminatory non-

promotion.

However, Patrick fails to establish the remaining element,

i.e., that she is qualified for a promotion to Nurse III.

Patrick’s file, including supplemental information, did not

satisfy criterion 2b or criterion 3 of the Nurse Qualification

Standards on either March 27 or June 5.

With respect to criterion 2b, the NPSB asserts that

Patrick’s file did not show the required “demonstrated ability to

initiate and lead interdisciplinary groups.” Patrick counters

this by citing her self-initiated proposals to identify visually

impaired hospital patients with arm bands and to hold classes for

chemotherapy patients. However, as of June 5, the most recent

date Patrick was evaluated for a Nurse III promotion, neither of

those proposals had been implemented or evaluated by the

hospital. Moreover, Patrick’s strong belief in her ability to

initiate and lead interdisciplinary groups is insufficient to

contradict an employer’s negative assessment to the contrary.

Gustovich v. AT&T Communications, Inc., 972 F.2d 845, 848 (5th

Cir. 1992). Thus, Patrick has not raised a genuine issue of

material fact concerning her qualifications under criterion 2b.

7
 With respect to criterion 3, the NPSB asserts that Patrick’s

file did not show the required “[s]ignificant and sustained

contributions to the nursing profession.” In response, Patrick

argues that her community involvement, including her volunteer

work with the American Red Cross and the American Cancer Society,

satisfies this criterion. Patrick suggests that other nurses

promoted to Nurse III have been deemed to satisfy criterion 3

with similar accomplishments. After reviewing the criterion 3

qualifications of the other promoted nurses, however, we find

that Patrick’s credentials under this criterion are not as

extensive as the other Nurse III promotees. Unlike Patrick’s

proficiency report, the proficiency reports of the promoted

nurses show significant participation in professional nursing

groups and the continuing education of doctors and nurses.

Again, Patrick’s honest belief in her own qualifications is not

enough to overcome the NPSB’s determination to the contrary.

Gustovich, 972 F.2d at 848. Thus, Patrick has not raised a

genuine issue of material fact concerning whether she was

qualified for the promotion to Nurse III and, therefore, has

failed to establish an element of her prima facie case of

employment discrimination.

C. NPSB’S Legitimate, Nondiscriminatory Reason

Even assuming that Patrick can establish a prima facie case

of discrimination, Patrick still cannot prevail on the

discrimination claim. The Secretary asserts that Patrick was not

8
promoted to Nurse III because she was not qualified for the

position. To rebut this legitimate, nondiscriminatory reason for

the NPSB’s employment decision, Patrick must present substantial

evidence of pretext. Bauer, 169 F.3d at 967. Patrick fails to

meet this burden.

The undisputed summary judgment evidence indicates that

neither the NPSB nor the selecting official considered Patrick’s

race in determining that she was not qualified for promotion.

Patrick presents no concrete evidence that suggests

discrimination. Rather, she bases her claim of discrimination on

mere speculative assertions concerning the manner in which the

NPSB makes employment decisions. Conclusory assertions and

subjective beliefs are insufficient to support a claim of

employment discrimination. See Lawrence v. Univ. of Tex. Med.

Branch at Galveston, 163 F.3d 309, 313 (5th Cir. 1999) (holding

that plaintiff’s subjective belief of racial discrimination is

insufficient to raise an inference of discrimination and could

not survive summary judgment); Grimes v. Tex. Dep’t of Mental

Health and Retardation, 102 F.3d 137, 140 (5th Cir. 1996)(holding

that “unsubstantiated assertions are not competent summary

judgment evidence”).

To avoid summary judgment, Patrick must raise a genuine

issue of material fact concerning whether the Secretary’s

proffered reason for the employment decision was pretextual.

Lawrence, 163 F.3d at 312. While Patrick disagrees with the

9
NPSB’s evaluation of her qualifications, such agreement is not

equivalent to the establishment of a discrimination case.

Shackelford, 190 F.3d at 408. Thus, Patrick fails to establish

that the Secretary’s reason for the employment decision was

pretextual, so she has not carried her ultimate burden on the

discrimination claim.

IV. Title VII Retaliation

A. The Law

To support a Title VII retaliation claim, the plaintiff must

show that: (1) she engaged in a protected activity, (2) an

adverse employment action occurred, and (3) a causal link exists

between her participation in the protected activity and the

adverse employment action. See Arnold v. U.S. Dep’t of Interior,

213 F.3d 193, 198 (5th Cir. 2000). “Protected activity” is

defined as opposition to any practice rendered unlawful by Title

VII, including making a charge, testifying, assisting, or

participating in any investigation, proceeding, or hearing under

Title VII. See 42 U.S.C. § 2000e-3(a) (2001); Evans v. City of

Houston, 246 F.3d 344, 352-53 (5th Cir. 2001). “Adverse

employment actions” include only “ultimate employment decisions .

. . ‘such as hiring, granting leave, discharging, promoting, and

compensating.’” Walker v. Thompson, 214 F.3d 615, 629 (5th Cir.

2000) (quoting Dollis v. Rubin, 77 F.3d 777, 782 (5th Cir.

10
1995)). A "causal link" exists when "’the employer’s decision to

terminate was based in part on knowledge of the employee’s

protected activity.’” Medina v. Ramsey Steel Co., Inc., 238 F.3d

674, 684 (5th Cir. 2001) (citing Sherrod v. Am. Airlines, Inc.,

132 F.3d 1112, 1122 (5th Cir. 1998)). Thus, to demonstrate the

required causal link for a prima facie case, the plaintiff need

not prove that her protected activity was the sole factor

motivating the employment decision. See Long v. Eastfield Coll.,

88 F.3d 300, 305 n.4 (5th Cir. 1996).

The framework for analyzing a retaliation claim “is the same

as that used in the employment discrimination context.” Rios v.

Rossotti, 252 F.3d 375, 380 (5th Cir. 2001). Once the plaintiff

establishes a prima facie case of unlawful retaliation, the

burden shifts to the defendant to articulate a legitimate,

nonretaliatory reason for the adverse employment action. Id. To

prevail, the plaintiff must present “sufficient evidence that

would permit a reasonable trier of fact to find that the

proffered reason is a pretext for retaliation.” Sherrod, 132

F.3d at 1122.

Ultimately, the plaintiff “must show that ‘but for’ the

protected activity, the adverse employment action would not have

occurred.”3 Seaman v. CSPH, Inc., 179 F.3d 297, 301 (5th Cir.

3
“[T]he ultimate issue in an unlawful retaliation case--
whether the defendant discriminated against the plaintiff because
the plaintiff engaged in conduct protected by Title VII--seems
identical to the third element of the plaintiff's prima facie

11
1999). Thus, even if retaliation was a motivating factor in the

non-selection of plaintiff, “no liability for unlawful

retaliation arises if the employee would [not have been selected]

even in the absence of the protected conduct.” Long, 88 F.3d at

305 n.4. We afford a great deal of deference to employers in

their hiring and promotion decisions. Rios, 252 F.3d at 380.

B. The Analysis

The parties do not dispute that Patrick engaged in a

protected activity when she spoke to the EEO Counselor on April

24, 1996, or that Patrick experienced an adverse employment

action when she was not selected for promotion by the NPSB.

Thus, Patrick satisfies elements one and two of her prima facie

case of retaliation. To establish the remaining element, Patrick

must show a causal link between her protected activity and the

adverse employment action. See Arnold, 213 F.3d at 198.

Patrick fails to establish this causal link for two

reasons.4 First, the timing of Patrick’s protected activity

case--whether a causal link exists between the adverse employment
action and the protected activity. However, the standards of
proof applicable to these questions differ significantly.” Long,
88 F.3d at 305 n.4 (emphasis in original). The causal link
element requires that the employment decision be “based in part
on knowledge of the employee’s protected activity”, Medina, 238
F.3d at 684, while the ultimate issue is a ‘but-for’ inquiry, see
Seaman, 179 F.3d at 301.
4
In its Memorandum Opinion and Order (pp. 10-12), the
district court considers the first of these reasons to be related
to the first element of a retaliation claim and the second reason
to be related to the third element. We think it makes more sense
to treat both of these reasons under the causal link element.

12
weakens the causal link between the activity and the non-

selection for promotion. On March 27, the NPSB first decided

that Patrick was not qualified for promotion to Nurse III. This

decision was made before Patrick met with the EEO Counselor on

April 24 and, therefore, is wholly unrelated to any protected

activity. Since Patrick’s qualifications, or lack thereof, did

not materially change from March 27 to June 5, the NPSB’s March

27 decision shows that Patrick most likely would not have been

promoted on June 5, even if she never engaged in any protected

activity.

Second, the NPSB’s members’ lack of knowledge regarding

Patrick’s protected activity weakens any causal link between the

activity and the non-selection for promotion. Of the three NPSB

members participating in the June 5 decision, only one knew of

Patrick’s meeting with the EEO Counselor. Furthermore, Patrick

presents no evidence that the selecting official in charge of

ratifying the NPSB’s decisions, Mr. Michael Harwell, knew of her

protected activity. It is undisputed that the NPSB did not

discuss Patrick’s protected activity at its June 5 meeting and

that the NPSB members never discussed Patrick’s protected

activity with Mr. Harwell. For these reasons, Patrick fails to

raise a genuine issue of material fact regarding a causal link

between her EEO activities and her non-selection for promotion.

Thus, Patrick failed to establish an element of her prima facie

case of retaliation.

13
C. NPSB’S Legitimate, Nonretaliatory Reason

Even assuming that Patrick can establish a prima facie case

of retaliation, Patrick still cannot prevail on the retaliation

claim. The Secretary asserts a legitimate, nonretaliatory reason

for the NPSB’s employment decision, i.e., that Patrick was not

promoted to Nurse III because she was not qualified for the

position. To rebut this statement, Patrick must present

substantial evidence of pretext. Bauer, 169 F.3d at 967.

Patrick fails to meet this burden.5

The undisputed summary judgment evidence indicates that

neither the NPSB nor the selecting official considered Patrick’s

protected activity in determining that she was not qualified for

promotion. Patrick bases her claim of retaliation on mere

speculative assertions, but conclusory assertions and subjective

beliefs are insufficient to support a retaliation claim. Travis

v. Board of Regents of the Univ. of Tex. Sys., 122 F.3d 259, 266

(5th Cir. 1997) (holding that plaintiff’s assertion of

retaliation “is merely her own subjective belief, which is

insufficient to create a jury question”).

To avoid summary judgment, Patrick must raise a genuine

issue of material fact concerning whether the Secretary’s

5
This discussion is closely analogous to the discussion
regarding the Secretary’s legitimate, nondiscriminatory reason
for Patrick’s non-promotion. See supra, Section III(C). This is
because the framework for analyzing a retaliation claim “is the
same as that used in the employment discrimination context.”
Rios, 252 F.3d at 380.

14
proffered reason for the employment decision was pretextual.

Lawrence, 163 F.3d at 312. While Patrick disagrees with the

NPSB’s evaluation of her qualifications, such agreement is not

equivalent to the establishment of a retaliation case.

Shackelford, 190 F.3d at 408. Thus, Patrick fails to establish

that the Secretary’s reason for the employment decision was

pretextual. Moreover, there can be no liability in a retaliation

case if the non-selection for promotion would have occurred

regardless of Patrick’s protected activity. See Long, 88 F.3d at

305 n.4. Patrick has not established that she would have been

promoted but for her protected activity, so she has not carried

her ultimate burden on the retaliation claim.

V. Conclusion

For all the foregoing reasons, we find that the district

court properly granted summary judgment for the Secretary.

Patrick fails to raise any genuine issues of material fact

concerning her discrimination or retaliation claims.

AFFIRMED.

15