Doss v. Martinez

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