IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
F I L E D
September 26, 2007
No. 07-40190
Summary Calendar Charles R. Fulbruge III
Clerk
GEORGE ALCALA
Plaintiff - Appellant
v.
FRANCIS HARVEY, Secretary of the US Army (US Army Corps of
Engineers)
Defendant - Appellee
Appeal from the United States District Court
for the Southern District of Texas, Galveston
No. 3:05-CV-686
Before KING, DAVIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Plaintiff-appellant George Alcala appeals the district court’s order
granting summary judgment for defendant-appellee Francis Harvey, Secretary
of the Army, on his claims of discrimination and retaliation in violation of Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e–2000e-17,
and the Federal Employee Anti-Discrimination and Retaliation Act of 2002, Pub.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
No. 07-40190
L. No. 107-174, 116 Stat. 566. For the following reasons, we AFFIRM, on
alternative grounds.
I. FACTUAL AND PROCEDURAL BACKGROUND
When the events that gave rise to this case began, George Alcala worked
as a Wage Grade 13 General Engineer in the Program and Project Management
Division of the Galveston Office of the United States Army Corps of Engineers
(“USACE”). Alcala initially contacted an Equal Employment Opportunity
(“EEO”) counselor on March 22, 2004, and filed a formal complaint claiming
discrimination on the bases of race, national origin,1 and physical and mental
disability on June 24, 2004. Subsequently, he withdrew the disability claim and
added a claim for retaliation.
Alcala alleged the following conduct in support of his discrimination and
retaliation claims: (1) in February 2002, Alcala was forced to manage an
increasingly heavy workload due to the failure of his first-line supervisor, Arthur
Janecka, and his second-line supervisor, Herbie Maurer, to implement his plan
to create a USACE support branch, where he would serve as chief, to assist with
Immigration and Customs Enforcement (“ICE”) projects, a plan created upon
USACE commander Colonel Leonard Waterworth’s request and encouraged by
Janecka; (2) in March 2002, Janecka and Maurer did not respond to Alcala’s
many emails asking that they address Col. Waterworth’s request for a strategic
plan or provide written guidance as to how he should move forward; (3) on July
8, 2002, Janecka and Maurer rejected suggestions that Alcala made during a
briefing with Col. Waterworth, and Alcala learned that he had been criticized by
senior managers as a “kingdom builder”; (4) on August 2, 2002, Janecka
promoted Bruce Briggs, a white male, noncompetitively to a 120-day term, which
later became permanent, as project manager and assigned Briggs border patrol
1
Alcala failed to distinguish between race and national origin, identifying himself as
Hispanic for both.
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No. 07-40190
projects previously developed and managed by Alcala;2 (5) between June and
December 2003, Oliver Benton “Benny” Anderson, a design project engineer
hired under Alcala to help on ICE projects, continuously undermined Alcala’s
authority by communicating directly with Kevin Jackson, an ICE contractor, and
attacking Alcala’s character, and Janecka failed to intervene; (6) between July
2003 and February 2004, USACE placed more reporting requirements on Alcala
than he was able to handle, and Janecka and Maurer ignored Alcala’s requests
for assistance; (7) on February 17, 2004, Janecka assigned Anderson projects
that Alcala formerly managed, and thereby diminished Alcala’s credibility and
reputation as senior project manager;3 and (8) on June 24, 2004, Tom Clinton,
a white male, was contracted by USACE to oversee repair and alteration (“R &
A”) projects that Alcala previously managed.
In response to Alcala’s allegations, at the hearing and in its motion for
summary judgment, USACE proffered the following as nondiscriminatory, non-
retaliatory reasons for its actions. We set them out in some detail because, as
it happens, they form the basis for our decision in this case.
First, to Alcala’s allegation that his plan for a support branch was rejected,
causing him to endure an unusually heavy workload, USACE explained that his
plan was discussed in meetings, but ultimately was rejected by Col. Waterworth
because USACE did not have the necessary funds available. Further, Alcala’s
proposed branch, unlike other support-for-others (“SFO”) branches, required the
creation of a new USACE branch and changes to the entire infrastructure of
2
The EEOC dismissed this claim as time-barred because it was a discrete act that
occurred outside the 45-day statute of limitations, but, nonetheless, it was considered as
background evidence in support of Alcala’s discrimination claim. 29 C.F.R. § 1614.105(a)(1).
3
Alcala testified at the fact-finding conference that this allegation was the one
supporting his retaliation claim, but in his briefs he seems also to rely on the June 24, 2004,
reassignment of his repair and alteration projects to Clinton and his later transfer to a project
in Mexico.
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No. 07-40190
USACE. In an attempt to rebut, Alcala argued that this reason was pretextual
because Maurer testified that there was no such thing as an SFO. This misreads
Maurer’s testimony, which reflects simply that he was not aware of SFOs of the
sort proposed by Alcala. Alcala made no other attempt to rebut the structural
or fiscal impediments to his plan.
Second, to Alcala’s allegation that Janecka and Maurer ignored his emails
asking for assistance in implementing his plan, both Janecka and Maurer
testified that while they might not have responded by email, they personally met
with Alcala and Col. Waterworth to discuss the initiative. Janecka also stated
that he asked Alcala to look into getting funding approved by the Architect-
Engineering Responsibility Coordinator (“AERC”) which, to his knowledge,
Alcala never did. Alcala did not dispute this, nor claim to have contacted AERC.
Third, to Alcala’s repeated allegation that his suggestion to restructure
USACE was rejected, and that he was criticized by his supervisors as a
“kingdom builder,” Janecka and Maurer repeated the impracticability of Alcala’s
plan and denied criticizing Alcala. Both Janecka and Maurer testified that
Alcala was a dedicated government employee who did his job well. In fact,
Anderson testified that he only heard the phrase “kingdom builder” from Alcala.
Rafael Rubalcaba, another Grade 13 engineer who helped Alcala with his ICE
projects, told Alcala that someone had criticized him, but could say neither who
nor when. Alcala presented no evidence to rebut this testimony.
Fourth, Alcala’s allegation that Briggs was contracted to assume Alcala’s
border patrol work was time-barred and could not sustain a judgment in his
favor. Nonetheless, USACE pointed to Alcala’s first allegation as evidence that
Alcala felt overwhelmed by his workload and cited that as the reason for
contracting Briggs. Alcala did not deny that he felt overwhelmed with work.
Fifth, to the claim that Anderson continuously undermined Alcala’s
authority by communicating directly with Jackson on an ICE project, Anderson
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No. 07-40190
testified that Alcala refused to talk with Jackson. In order to facilitate the work,
Anderson communicated with Jackson. Janecka permitted it to ensure the
success of the project. Janecka added that, on two separate occasions, Jackson
and another employee complained that they could not reach Alcala and had to
communicate through Anderson. Alcala never disputed that he refused to
communicate with Jackson.
Sixth, with respect to the increased burden on Alcala to make monthly
financial reports and his supervisors’ refusal to provide him with assistance,
Janecka testified that it was ICE requiring more frequent reports, not USACE,
and that he offered Alcala an assistant, but Alcala rejected the idea. Alcala did
not dispute this testimony or present any evidence to suggest that it was untrue.
Seventh, with respect to Anderson receiving Alcala’s ICE projects on
February 17, 2004, Janecka testified that the second time Alcala complained
about Anderson, on February 12, 2004, he gave Janecka an ultimatum to either
fire Anderson or remove himself from the ICE projects. Janecka removed Alcala
and assigned the projects to Anderson. Although Alcala looked uncomfortable
with this decision, he did not openly object. Further, while Alcala’s assignments
were diminished following his removal, USACE attributed this to his requests
for a lighter workload. Alcala did not deny that he had made such requests.
Eighth, and finally, in response to Alcala’s complaint that Clinton was
contracted on June 24, 2004, to assume his R & A projects after he was
reassigned on February 17, 2004, Janecka testified, and Anderson corroborated,
that in early February, Alcala, Briggs, and Anderson collectively asked him to
hire another project manager responsible for the R & A projects. Janecka could
not find anyone in USACE to take over the projects, so USACE contracted
Clinton after months of searching. Alcala did not dispute this incident.
USACE dismissed Alcala’s formal complaint on August 12, 2004 as time-
barred and for failure to state a claim. On September 10, 2004, Alcala appealed
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No. 07-40190
to the Equal Employment Opportunity Commission (the “EEOC”), Office of
Federal Operations. On January 5, 2005, the EEOC reinstated Alcala’s claims,
but held that the fourth allegation was time-barred. On February 17, 2005, the
Department of Defense accepted the remanded claims for investigation by the
Office of Complaint Investigations. A fact-finding conference was held on June
3, 2005. Alcala withdrew his disability claim and added a retaliation claim,
supported by his allegations that projects were removed from him and assigned
to Anderson.4
On July 20, 2005, the EEO Complaints Investigator found that there was
insufficient evidence in the record of severe or pervasive activities to prove a
hostile work environment or show that Alcala was targeted for harassment.
Moreover, with respect to the employment claims, USACE had articulated
legitimate, nondiscriminatory reasons for all of its actions. Finally, Alcala failed
to present sufficient evidence to show that USACE’s reasons were pretextual.
Upon these findings, Alcala filed suit in district court on December 27,
2005. On December 15, 2006, USACE moved for summary judgment on the
grounds that Alcala failed to make a prima facie case of either discrimination or
retaliation, and that even if Alcala had made a prima facie case, USACE had
legitimate, nondiscriminatory reasons for all of its actions. On January 18,
2007, Alcala responded, and again failed to provide any specific evidence that
USACE’s nondiscriminatory explanations were false or pretextual. Instead, his
response stated generally that given “the substantive pattern and practice
4
In the district court, to support his retaliation claim, Alcala also alleged that after
Clinton was contracted, he was forced to apply for a temporary position in Mexico, in or about
March 2005, because the projects that he was assigned were “a joke.” Although this allegation
was not raised in his EEO complaint, as the district court explained, it could be considered as
evidence of retaliation because “it [grew] out of an earlier administrative charge properly
before the court.” Gupta v. E. Tex. State. Univ., 654 F.2d 411, 414 (5th Cir. 1981). However,
Alcala testified under oath at the fact-finding conference that he very discreetly applied for the
job, and that the position, Grade 14 Civil/Hydraulic Engineer, was actually a promotion from
his Grade 13 position.
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No. 07-40190
exhibited by USACE, [USACE’s] explanations are not worthy of credence and
thus—ironically—themselves establish pretext.” (R. 388-89.)
The district court granted summary judgment on the grounds that Alcala
could not show a causal connection between his allegations—that he was denied
a promotion when his master plan was rejected and that he was “forced” to apply
for and accept a position in Mexico, both adverse employment actions in the
retaliation context under Burlington Northern & Santa Fe Railway Co. v. White,
126 S. Ct. 2405, 2414-15 (2006)—and his protected activity, the March 22, 2004
contact with the EEO counselor. Thus, he failed to make a prima facie case of
retaliation. Id.
Likewise, the district court applied the Mattern ultimate-employment-
decision standard and held that Alcala failed to make a prima facie case of
discrimination because he could not show that he was subject to an adverse
employment action. Mattern v. Eastman Kodak, Co., 104 F.3d 702, 707 (5th Cir.
1997). Alcala filed timely notice of appeal on February 20, 2007.
II. STANDARD OF REVIEW
We review a district court’s order granting summary judgment de novo,
applying the same legal standards that the district court applied to determine
whether summary judgment was appropriate. Harvill v. Westward Commc’ns,
L.L.C., 433 F.3d 428, 433-34 (5th Cir. 2005). Summary judgment is proper when
the pleadings, discovery responses, and affidavits show that there is no genuine
issue of material fact, and that the moving party is entitled to a judgment as a
matter of law. FED. R. CIV. P. 56(c). A dispute over a material fact is genuine if
the evidence is such that a reasonable jury could return a verdict for the non-
moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In
determining whether there is a genuine issue of material fact, we must view all
evidence in the light most favorable to the non-moving party. Daniels v. City of
Arlington, 246 F.3d 500, 502 (5th Cir. 2001). Nevertheless, we have made clear
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No. 07-40190
that “unsubstantiated assertions are not competent summary judgment
evidence . . . . In response to motions for summary judgment, it is . . . incumbent
upon the non-moving party to present evidence—not just conjecture and
speculation—that the defendant retaliated and discriminated against plaintiff
on the basis of . . . race” or national origin. Grimes v. Tex. Dep’t of Mental Health
& Mental Retardation, 102 F.3d 137, 139-40 (5th Cir. 1996). Finally, it is well
established that we “may affirm a grant of summary judgment on grounds other
than those relied upon by the district court when the record contains an
adequate and independent basis for the result.” Montgomery v. Brookshire, 34
F.3d 291, 297 (5th Cir. 1994).
III. DISCUSSION
Once a plaintiff exhausts all available administrative remedies and files
suit for discrimination and retaliation in federal district court, the burden-
shifting approach established by the Supreme Court in McDonnell Douglas Corp.
v. Green controls our analysis. 411 U.S. 792, 802 (1973); see also McCoy v. City
of Shreveport, 492 F.3d 551, 2007 U.S. App. LEXIS 16582, at *6 (5th Cir. July
11, 2007). The plaintiff must first produce evidence sufficient to make a prima
facie case of each claim. Id. If the plaintiff establishes a prima facie case, the
burden shifts to the defendant to produce legitimate, nondiscriminatory or non-
retaliatory reasons for its action. Id. If the defendant proffers such reasons, the
plaintiff then bears the ultimate burden of proving that the given reasons are
merely pretext for discrimination or retaliation. Id. at 804-05.
In order to establish a prima facie case of retaliation a plaintiff must show
that: (1) the plaintiff participated in an activity protected by Title VII; (2) the
defendant employer took an adverse employment action against the plaintiff;
and (3) a causal connection exists between the protected activity and the adverse
employment action. McCoy, 492 F.3d 551, 2007 U.S. App. LEXIS 16582, at *6-7.
A prima facie case of discrimination requires a showing that the plaintiff: (1) is
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No. 07-40190
a member of a protected group; (2) was qualified for the position at issue; (3) was
discharged or suffered some adverse employment action by the employer; and (4)
was replaced by someone outside his protected group or was treated less
favorably than other similarly situated employees outside the protected group.
Id.
In this case, the district court granted summary judgment for USACE on
the grounds that Alcala failed to make a prima facie case of retaliation or
discrimination. Because we affirm the district court on an alternative basis, it
is unnecessary to decide whether the district court was correct in concluding that
Alcala failed to make a prima facie case of either discrimination or retaliation.
Britt v. Grocers Supply Co., 978 F.2d 1441, 1450 (5th Cir. 1992). Regardless,
USACE proffered legitimate, nondiscriminatory, non-retaliatory reasons for its
actions, as presented in detail above, and Alcala failed to respond with sufficient
evidence to show that those reasons were pretextual. He merely restated the
undisputed facts that he was assigned to projects of diminished stature with
reduced funding, he was transferred to Mexico with a lower locality pay
allowance, and no other project managers had similar experiences. These
recitations fail to provide the kind of “evidence—not just conjecture and
speculation—that the defendant retaliated and discriminated against [the]
plaintiff on the basis of . . . race” or national origin necessary to show pretext and
survive summary judgment. Grimes, 102 F.3d at 139-40.
IV. CONCLUSION
Because Alcala did not put forth sufficient evidence to satisfy his burden
of persuasion that USACE’s reasons were merely pretextual, we AFFIRM the
district court’s judgment.
AFFIRMED.
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