UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-10887
Summary Calendar
JOYCE B. DOSS,
Plaintiff-Appellant,
VERSUS
MELQUIADES R. MARTINEZ,
SECRETARY OF HOUSING AND URBAN DEVELOPMENT,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Texas
m 3:00-CV-267-BC(H)
July 10, 2002
Before JONES, SMITH, and EMILIO M. Joyce Doss, who is black, sued the Sec-
GARZA, Circuit Judges. retary of Housing and Urban Development
(“HUD”), alleging race discrimination and re-
PER CURIAM:* taliation in violation of title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C.
§ 2000e et seq., and race discrimination in
violation of 42 U.S.C. § 1981. Doss asserts
*
Pursuant to 5TH CIR. R. 47.5, the court has claims of disparate treatment based on her race
determined that this opinion should not be and retaliation based on conduct protected by
published and is not precedent except under the title VII. The district court granted HUD’s
limited circumstances set forth in 5TH CIR.
R. 47.5.4.
motion to dismiss the § 1981 claims1 and Doss’s testimony fails for lack of personal
HUD’s motion for summary judgment on the knowledge and even contradicts her allega-
title VII claims. We affirm. tions of disparate treatment. Thus, we agree
with the district court’s conclusion that Doss
We review de novo the grant of summary failed to make a prima facie showing of dis-
judgment.2 Summary judgment is appropriate parate treatment based on race, so summary
when the pleadings and record evidence show judgment on this claim was proper.
that no genuine issue of material fact exists
and that, as a matter of law, the movant is Doss alleged retaliation for being placed on
entitled to judgment.3 In a thorough and well- AWOL status and for her non-selection for the
reasoned memorandum opinion and order, the Dallas Community Builder position because
district court held that Doss had failed to es- she had filed and prosecuted previous EEO
tablish a prima facie showing of disparate claims of discrimination against HUD. Al-
treatment based on race by admissible evi- though Doss established a prima facie case,6
dence. she failed her burden to present evidence rais-
ing a fact question as to whether HUD’s as-
Evidence based on hearsay is inadmissible serted legitimate, non-retaliatory justifications
and may not be considered on summary judg- were false or pretextual.7 Accordingly, sum-
ment,4 and “[m]ere conclusory allegations are mary judgment on these claims was proper.
not competent summary judgment evidence.”5
The affidavits submitted in support of Doss’s The district court also correctly granted
claim that white employees were treated more summary judgment on Doss’s additional claims
favorably than black employees are inadmiss- of retaliation with respect to her supervisor’s
ible. The statements of Teressia Smith and actions in placing her on leave restriction,
Brenda Briscoe fail for lack of personal know- giving her an official reprimand for
ledge, constitute inadmissible hearsay, and
contain conclusional allegations. In addition,
6
To establish a prima facie case of retaliation,
a plaintiff must show that (1) he engaged in an
1
Doss conceded that her § 1981 claims should activity protected by Title VII; (2) he suffered from
be dismissed and does not challenge the district an adverse employment action; and (3) a causal
court’s ruling on those claims. connection exists between the protected activity
and the adverse employment action. Shackelford
2
Sherrod v. Am. Airlines, Inc., 132 F.3d 1112, v. Deloitte & Touche, L.L.P., 190 F.3d 398,
1121 (5th Cir. 1998). 407–08 (5th Cir. 1999).
7
3
FED. R. CIV. P. 56(c); Nichols v. Loral See St. Mary’s Honor Ctr. v. Hicks, 509 U.S.
Vought Sys. Corp., 81 F.3d 38, 40 (5th Cir. 1996). 502, 507–08 (1993) (stating that if the defendant
rebuts the plaintiff’s prima facie showing by dem-
4 onstrating legitimate, nondiscriminatory reasons
See Fowler v. Smith, 68 F.3d 124, 126 (5th
Cir. 1995); Pan-Islamic Trade Corp. v. Exxon the adverse employment actions, the plaintiff has
Corp., 632 F.2d 539, 556 (5th Cir. 1980). the burden to prove by a preponderance of the
evidence that the legitimate reasons proffered were
5
Topalian v. Ehrman, 954 F.2d 1125, 1131 not its true reasons, but rather a pretext for
(5th Cir. 1992). discrimination).
2
insubordination, and rating her “fully suc-
cessful” on her performance appraisal. As part
of her burden to establish a prima facie case of
retaliation, Doss must show that she suffered
from an adverse employment action,8 which
means an “ultimate employment decision”
only.9 “‘Ultimate employment decisions’
include acts ‘such as hiring, granting leave,
discharging, promoting and compensating’”10
but do not include acts that leave the
employee’s pay, benefits, and levels of respon-
sibility unchanged.11 The complained-of
actions did not affect Doss’s pay, benefits, or
levels of responsibility and, therefore, do not
constitute adverse employment actions and,
accordingly, cannot support a claim of
retaliation under title VII.
Finally, the district court properly dismissed
Doss’s claims of racial harassment and hostile
work environment. The conduct in question
was not severe or pervasive enough to create
an objectively hostile or abusive work
environment or harassment under title VII, and
no disparate treatment occurred.12
AFFIRMED.
8
See Shackelford, 190 F.3d at 407–08.
9
Mattern v. Eastman Kodak Co., 104 F.3d
702, 707 (5th Cir. 1997).
10
Id. (quoting Dollis v. Rubin, 77 F.3d 777,
782 (5th Cir. 1995)).
11
Watts v. Kroger Co., 170 F.3d 505, 512 (5th
Cir. 1999).
12
See Mattern, 104 F.3d at 706.
3
Doss v. Martinez
Combined Opinion