UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-41100
Summary Calendar
WAYNE C. McCONLEY,
Plaintiff-Appellant,
versus
THOMAS E. WHITE,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Texas
(C-02-CV-7)
February 18, 2003
Before BARKSDALE, DeMOSS and BENAVIDES, Circuit Judges.
PER CURIAM:*
Wayne C. McConley, an African-American, appeals the dismissal
and summary judgment of this Title VII employment discrimination
and retaliation action. McConley is a grade 13 Aircraft
Maintenance Division Chief in the Maintenance Directorate of the
Corpus Christi Army Depot. McConley claims he was discriminated
against when his supervisor, Jerry New, was promoted to grade 15,
and a grade 14 white male from a different division, Peter
*
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that this opinion should not be published and is not precedent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.
Epperson, filled a temporary Deputy Director position. McConley
also asserts these decisions were in retaliation for a successful
employment discrimination action he brought in 1994.
A Fed. R. Civ. Proc. 12(b)(6) dismissal is reviewed de novo.
Haynes v. Prudential Health Care, 313 F.3d 330, 333 (5th Cir.
2002). The complaint must be liberally construed and a dismissal
will only be upheld when no set of facts would entitle plaintiff to
relief. Id. A summary judgment is reviewed de novo. Ramirez v.
City of San Antonio, 312 F.3d 178, 181 (5th Cir. 2002). A summary
judgment is appropriate when there are no genuine issues of
material fact, and the movant is entitled to judgment as a matter
of law. Id.
The district court dismissed, as not administratively
exhausted, McConley’s claim that New’s promotion acted as a de
facto demotion and, in itself, constituted discrimination.
Exhaustion of administrative remedies is a prerequisite to bringing
a Title VII suit in the federal courts. Fitzgerald v. Secretary,
U.S. Dept. of Veterans Affairs, 121 F.3d 203, 206 (5th Cir. 1997).
We agree with the district court. While McConley filed an EEOC
complaint regarding Epperson’s placement, he did not do so
regarding New’s promotion to Grade 15.
The district court also dismissed McConley’s claim for
emotional and mental injuries. In order to recover such injuries,
the employee must notify his employer of the specific relief
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sought. Id. at 208. Damages do not need to be described in a
legal or technical manner, but, still, must describe particular
facts on which emotional or mental injuries are based. West v.
Gibson, 527 U.S. 212, 217 (1999). McConley asserts his references,
in a statement attached to his complaint, to New’s “plantation
mentality” and his being “oppressed” provided proper notice. These
statements, however, did not allege particular facts, which “might
warrant an offer of compensatory damages”. Fitzgerald, 121 F.3d at
209.
Finally, the district court granted summary judgment on
McConley’s discrimination and retaliation claims for back pay and
declaratory relief. A prima facie discrimination claim requires
McConley to show: (1) he is a member of a protected group; (2) he
was qualified for the position at issue; (3) the employer took an
adverse employment action despite the plaintiff’s qualifications;
and (4) the plaintiff was replaced by someone not a member of the
protected group or others similar-situated to the plaintiff were
more favorably treated. See McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802 (1973). A prima facie retaliation claim requires:
(1) the employee participated in activity protected by Title VII;
(2) an adverse employment action occurred; and (3) that a casual
connection exists between the protected activity and the adverse
employment action. Mattern v. Eastman Kodak Co., 104 F.3d 702, 705
(5th Cir.), cert. denied, 522 U.S. 932 (1997).
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An adverse employment action is an “ultimate employment
decision” including acts “such as hiring, granting leave,
discharging, promoting, and compensating”. Id. at 707. Other
interlocutory or mediate decisions, which lack consequences, are
not actionable. See Walker v. Thompson, 214 F.3d 615, 629 (5th
Cir. 2000); Mattern, 104 F.3d at 708.
McConley asserts he was overlooked for the Grade 14 position
because of his race and in retaliation for the complaint he
previously brought against New. Because New’s position is now
Grade 15 and because McConley was not promoted and placed in
Epperson’s provisional position, he claims his promotional path is
effectively “blocked”. The position Epperson filled, however, was
temporary, never meant for a civilian, and ultimately eliminated.
McConley has failed to show any adverse consequences from not being
placed in the position; his pay, benefits, and level of
responsibility have remained the same, and he still has the
opportunity for promotion, though he may have to look outside the
installation. These actions do not “rise above having mere
tangential effect on a possible future ultimate employment
decision”. Mattern, 104 F.3d at 708.
AFFIRMED
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