IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________________
No. 01-50654
(Summary Calendar)
_______________________________
MILDRED BUTLER,
Plaintiff-Appellant,
versus
DONALD H. RUMSFELD, SECRETARY OF DEFENSE,
Defendant-Appellee.
_________________________________________________
Appeal from the United States District Court
for the Western District of Texas - Waco Division
(W-00-CV-48)
_________________________________________________
January 8, 2002
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM*:
Plaintiff-Appellant Mildred Butler appeals the district
court’s grant of summary judgment in favor of defendant-appellee
the Secretary of the Department of Defense (the “Department”),
dismissing her Title VII employment discrimination claim based on
race and her Age Discrimination Employment Act (“ADEA”) claim.
Agreeing with the reasoning and conclusions of the district court,
*
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this opinion should not be published and is not precedent except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.
1
we affirm.
Butler, a fifty-eight year-old African American woman, was
employed as a civilian accounting technician for the Defense
Finance and Accounting Service (“DFAS”)in its Fort Hood, Texas
office. At one point during her employment, Butler was informed
by her supervisor that she was concerned about Butler’s job
performance because Butler had committed an unacceptable number of
“exceptions” on her entries into the accounting system.1 Bulter
was then placed on a provisional performance improvement plan
(“PIP”), under which she was required to demonstrate rehabilitation
of her job performance. After receiving the PIP notice, Butler
filed a formal complaint with the Equal Employment Opportunity
Commission (“EEOC”).
In the months following Butler’s PIP notice, her performance
failed to improve, and she again exceeded the number of allowable
exceptions. Accordingly, Butler received a notice of proposed
removal from her supervisor which detailed Butler’s errors.
Ultimately, the official vested with decision-making authority,
David Stegman, informed Butler that the proposed removal would be
sustained.
Bulter appealed her termination to the Merit Systems
Protection Board (the “MSPB”). After a hearing, the administrative
law judge for the MSPB affirmed the Department’s decision to
1
“Exceptions” are notices of an entry error or omission in
the automated accounting system used by the DFAS.
2
terminate Butler’s employment, concluding that Butler had failed to
establish a prima facie case of either race or age discrimination.
Butler then appealed the MSPB’s decision to the EEOC. The EEOC
concurred with the decision of the MSPB, explaining that the
Department had provided legitimate, non-discriminatory reasons for
firing Butler and that, other than her own subjective beliefs, she
could offer no evidence to counter the Department’s proffered
reasons. Having exhausted her administrative remedies, Bulter
filed suit in district court, where summary judgment was eventually
granted in favor of the Department, dismissing all of Bulter’s
claims. She timely appealed.
We review a grant of summary judgment de novo, applying the
same standard as the district court.2 A motion for summary
judgment is properly granted only if there is no genuine issue as
to any material fact.3 An issue is material if its resolution
could affect the outcome of the action.4 In deciding whether a
fact issue has been created, we must view the facts and the
inferences to be drawn therefrom in the light most favorable to the
nonmoving party.5
2
Morris v. Covan World Wide Moving, Inc., 144 F.3d 377, 380
(5th Cir. 1998).
3
Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986).
4
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
5
See Olabisiomotosho v. City of Houston, 185 F.3d 521, 525
(5th Cir. 1999).
3
The standard for summary judgment mirrors that for judgment as
a matter of law.6 Thus, the court must review all of the evidence
in the record, but make no credibility determinations or weigh any
evidence.7 In reviewing all the evidence, the court must disregard
all evidence favorable to the moving party that the jury is not
required to believe, and should give credence to the evidence
favoring the nonmoving party as well as that evidence supporting
the moving party that is uncontradicted and unimpeached.8
As the MSPB, the EEOC, and the district court have thoroughly
and extensively treated Butler’s claims, we decline to rehash their
analyses. It suffices that we agree with the district court:
Butler cannot establish a prima facie case of racial
discrimination, age discrimination, or retaliatory action by the
Department. Regarding her racial discrimination claim, Butler
cannot demonstrate that similarly situated employees of other races
were treated differently. The only evidence she presents is her
own conclusional allegations and her comparison to a white employee
who did not share Butler’s supervisor, employment grade, or job
title. Similarly, regarding her age discrimination claim, Butler
has produced no evidence to suggest that the Department’s actions
6
Celotex Corp., 477 U.S. at 323.
7
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133,
150 (2000).
8
Id. at 151.
4
were taken on account of her age. Finally, regarding her
retaliation claim, Butler has produced no competent summary
judgment evidence demonstrating a causal link between her
termination and a grievance she filed with the Department.
Specifically, no evidence exists in the record to suggest that
Butler’s termination was based on anything but her poor performance
in the months preceding her termination. Finally, as the district
court notes, even if we were to assume arguendo that Butler met her
prima facie burden, the Department has met its burden of production
by articulating a legitimate, non-discriminatory reason for its
decision. Apart from her bald allegations, Bulter has produced no
evidence to cast doubt on the Department’s proffered reason.
In short, Butler’s claims fail because she has not, at any
stage of the proceedings, produced evidence, in the form of
affidavits or otherwise, to support her allegations of
discrimination. Butler has now pursued these baseless claims
through the relevant administrative bodies, the district court, and
this court, armed with nothing more than her unsupported beliefs.
As this appeal borders on frivolousness, Butler is cautioned that
any further protraction of the litigation in this case will expose
her to sanctions.
For the reasons articulated by the district court, the summary
dismissal of Butler’s claims is, in all respects,
5
AFFIRMED.
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