Peace v. Harvey

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 26, 2006

Charles R. Fulbruge III
Clerk
No. 06-50402
Summary Calendar

GLENDA A. PEACE,

Plaintiff-Appellant,

versus

FRANCIS J. HARVEY,

Defendant-Appellee.

Appeal from the United States District Court
for the Western District of Texas
(No. 6:05-CV-120)

Before DAVIS, BARKSDALE and BENAVIDES, Circuit Judges.

PER CURIAM:*

Glenda A. Peace contests a summary judgment awarded the

Secretary of the Army. For the reasons that follow, such

judgment was proper.

Formerly employed in the command group at Fort Hood, Texas, as

a secretary for a foreign general, Peace maintains the other

command-group secretaries harassed her almost immediately after she

began work in 1998. During her employment, an investigation was

conducted for whether she had falsely reported hours worked and

*
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this opinion should not be published and is not precedent except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.
leave taken from 1999 to 2001; she was cleared of any wrongdoing,

and no disciplinary action was taken. In addition, Peace received

a letter of reprimand for opening and reading an email to her

administrative superior.

In August 2002, Colonel Settles, who had numerous therapy

sessions with Peace during 2002, recommended her medical

retirement, stating Peace was seeking it due to stress related to

childhood sexual assault, as well as her “situation at home and

work”. That September, Peace’s retirement application was

approved. Her last day of employment was in October 2002.

Earlier, in July 2002, Peace filed an administrative complaint

for discrimination, after receiving the above-discussed letter of

reprimand. The complaint was denied both by the EEO administrative

judge and by the EEOC on appeal.

Peace subsequently filed this action, claiming:

discrimination in violation of Title VII, the Rehabilitation Act of

1973, and the Age Discrimination in Employment Act of 1967 (ADEA);

a hostile work environment; and retaliation on account of her

gender, disability, age, and EEOC complaint. As noted, summary

judgment was awarded against Peace on all claims.

A summary judgment is reviewed de novo. Blow v. City of San

Antonio, 236 F.3d 293, 296 (5th Cir. 2001). “Summary judgment is

appropriate only if the full record discloses ‘no genuine issue as

to any material fact and ... the moving party is entitled to a

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judgment as a matter of law’.” Id. (quoting FED R. CIV. P. 56(c)).

For the de novo review, this court “view[s] all facts in the light

most favorable to the non-moving party”. Id.

Peace maintains the district court erred by ruling her claims

did not involve “ultimate employment decisions”. She appears to

contend that the district court, particularly in the light of the

Supreme Court’s recent holding in Burlington Northern & Santa Fe

Railway Co. v. White, 126 S. Ct. 2405 (2006), did not adequately

consider her retaliation claim.

When reviewing an adverse summary judgment for a retaliation

claim, we apply the burden-shifting framework articulated in

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

first make a prima facie showing of retaliation by establishing:

1) she engaged in protected activity; 2) she suffered an adverse

employment action; and 3) a causal link exists between the

protected activity and the adverse employment action. E.g., Long

v. Eastfield College, 88 F.3d 300, 304 (5th Cir. 1996). Regarding

the second element, this circuit formerly held only “ultimate

employment decisions”, such as “hiring, granting leave,

discharging, promoting, and compensation”, were actionable “adverse

employment actions”. See, e.g., Hernandez v. Crawford Bldg.

Material Co., 321 F.3d 528, 531 (5th Cir.), cert. denied, 540 U.S.

817 (2003). Burlington Northern, however, altered the “adverse

employment action” standard for retaliation claims, holding

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retaliation actionable if “a reasonable employee would have found

the challenged action materially adverse, which in this context

means it well might have dissuaded a reasonable worker from making

or supporting a charge of discrimination”. 126 S. Ct. at 2415

(emphasis added) (internal quotations and citations omitted).

It is undisputed Peace’s 8 July 2002 complaint to the EEOC

satisfies the first element (protected activity) for a prima facie

retaliation claim. Nevertheless, the summary-judgment evidence

fails to create a genuine issue of material fact on the existence

of an “adverse employment action”, even under the new Burlington

Northern standard.

A number of the incidents upon which Peace relies pre-date her

EEOC complaint, and thus cannot logically support a retaliation

claim. Peace also relies, inter alia, on the following post-EEOC

complaint incidents: she received a note detailing leave approval

procedures from the Deputy Chief of Staff; she was not provided a

designated seat at a ceremony for her departing general; she was

assigned “menial and degrading work” when told to work on security

files and other “non-critical” tasks; she was told she could no

longer park in her assigned space; and, three days before her

retirement date, a superior yelled at her and told her to move out

of her office.

Importantly, in Burlington Northern the Court stressed: “We

speak of material adversity because ... it is important to separate

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significant from trivial harms”, id. (emphasis in original), and

noted an “employee’s decision to report discriminatory behavior

cannot immunize that employee from those petty slights or minor

annoyances that often take place at work”. Id. Viewed in the

light of the summary-judgment record, these incidents are either

unsupported or so “trivial” as to fail the Burlington Northern

standard.

Although Peace’s pay and performance-award delays and her

claim of constructive discharge relating to her retirement could

plausibly be construed as “adverse employment actions”, we need not

address that question because, as with all incidents upon which she

relies, Peace fails to create a genuine issue of material fact as

to the existence of the third element of a prima facie retaliation

case: a causal link between the incident and her EEOC complaint.

Her subjective belief the incidents were retaliatory, without more,

is not sufficient to survive summary judgment. See Byers v. Dallas

Morning News, Inc., 209 F.3d 419, 427 (5th Cir. 2000). (Moreover,

for the final step in the burden-shifting analysis, Peace fails to

rebut the legitimate, non-retaliatory reasons for the conduct in

question.)

It is unclear whether Peace contests the adverse summary

judgment for her other claims. In any event, although Peace

alludes to her hostile-environment claim, she offers no supporting

argument. Further, although stating she “presented prima facie

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proof of discrimination because of her disability and sex”, she

fails to support this assertion with argument, authority, or

citations to the record. Accordingly, any arguments related to

these claims are waived. See FED. R. APP. P. 28(a)(9)(A)

(appellant’s brief must contain citation to relevant legal

authorities); United States v. Edwards, 303 F.3d 606, 647 (5th Cir.

2002) (inadequately briefed arguments are waived), cert. denied,

537 U.S. 1192 (2003).

AFFIRMED

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