IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 15, 2009
No. 08-20408
Summary Calendar Charles R. Fulbruge III
Clerk
LINDY WATKINS,
Plaintiff-Appellant,
versus
HENRY PAULSEN, Secretary of the Treasury,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Texas
No. 4:06-CV-1753
Before SMITH, STEWART, and SOUTHWICK, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
Lindy Watkins appeals a summary judgment in her employment discrim-
ination action against the Secretary of the Treasury (“the Treasury”). We affirm.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-20408
I.
Watkins—a black woman over the age of forty employed by the Depart-
ment of the Treasury—received a score of 3.0 out of 5.0 in her yearly job perfor-
mance review for the fiscal year ending in May 2004 (the “2004 review”).1 She
filed an Equal Employment Opportunity (“EEO”) administrative complaint,
which was denied, then brought the present lawsuit alleging that the 2004 re-
view constituted (1) discrimination on the basis of race and sex and (2) retalia-
tion for EEO administrative complaints she first filed over twenty months ear-
lier, all in violation of title VII of the Civil Rights Act of 1964 (“title VII”), 42
U.S.C. §§ 2000e et seq. She also alleged that the 2004 review constituted (3) dis-
crimination under the Age Discrimination in Employment Act of 1967 (“ADEA”),
29 U.S.C. § 621 et seq., and (4) that she was subject to a hostile work environ-
ment in violation of title VII. The district court adopted the magistrate judge’s
memorandum and order granting the Treasury summary judgment on all four
of Watkins’s claims.2
Summary judgment is appropriate where “there is no genuine issue as to
any material fact and . . . the movant is entitled to judgment as a matter of law.”
F ED. R. C IV. P. 56(c). “This Court reviews grants of summary judgment de novo,
applying the same standard as does a district court, viewing the evidence in a
light most favorable to the non-movant.” Lauderdale v. Texas Dep’t of Criminal
1
That score corresponds to a description of “fully successful” under the evaluation rub-
ric used in Watkins’s case.
2
Watkins’s complaint included various tort claims and claims related to subsequent
job performance reviews, but Watkins withdrew them in her response to the Treasury’s motion
for summary judgment. They are therefore deemed waived. See Black v. N. Panola Sch. Dist.,
461 F.3d 584, 588 n.1 (5th Cir. 2006) (“[F]ailure to pursue this claim beyond her complaint con-
stituted abandonment.”). Watkins has briefed appeals from dismissal of her discrimination
and retaliation claims, but not her hostile work environment claim. The latter claim is there-
fore waived as well. See United States v. Thames, 214 F.3d 608, 612 n.3 (5th Cir. 2000) (waiv-
er for failure to brief).
2
No. 08-20408
Justice, 512 F.3d 157, 162 (5th Cir. 2007) (quoting Fruge ex rel. Fruge v. Parker
Drilling Co., 337 F.3d 558, 560 (5th Cir. 2003)). We review questions of law de
novo.
II.
To avoid summary judgment on her claims of discrimination on the basis
of sex, race, and age, Watkins had to raise a genuine issue of material fact on
each element of the prima facie case of discrimination. See Johnson v. Louisi-
ana, 351 F.3d 616, 621-22 (5th Cir. 2003). Those four elements include showings
that the plaintiff
(1) is a member of a protected group; (2) was qualified for the posi-
tion at issue; (3) was discharged or suffered some adverse employ-
ment action by the employer; and (4) was replaced by someone out-
side his protected group or was treated less favorably than other
similarly situated employees outside the protected group.
McCoy v. City of Shreveport, 492 F.3d 551, 556 (5th Cir. 2007) (per curiam). Es-
sentially the same framework applies to both title VII and ADEA claims. Com-
pare id. (title VII) with Rachid v. Jack In The Box, Inc., 376 F.3d 305, 309 (5th
Cir. 2004) (ADEA).
The district court concluded that Watkins does not satisfy the second two
elements. In finding that she had failed to show an adverse employment action,
the court employed the “ultimate employment decision” test that our precedents
require: “[A]dverse employment actions include only ultimate employment deci-
sions such as hiring, granting leave, discharging, promoting, or compensating.”3
Watkins responds that Burlington Northern & Santa Fe Railway Co. v. White,
548 U.S. 53 (2006), abrogates that definition in favor of a broader one that more
easily accommodates her lower-than-expected job performance review.
3
See McCoy, 492 F.3d at 559 (quoting Green v. Adm’rs of Tulane Educ. Fund, 284 F.3d
642, 657 (5th Cir. 2002)).
3
No. 08-20408
That is incorrect. The Burlington Northern Court held that the range of
employer actions prohibited by title VII’s anti-retaliation provisions is broader
than the range covered by its anti-discrimination provisions.4 “[O]ur precedent
recognizing only ‘ultimate employment decisions’ as actionable adverse employ-
ment actions remains controlling for title VII discrimination claims[.]” McCoy,
492 F.3d at 560. The district court’s statement of the law is therefore accurate.5
The 2004 review itself, standing alone, plainly does not satisfy the ulti-
mate-employment-decision test, nor has Watkins brought evidenceSSother than
her own conclusory assertionsSSto show that any ultimate employment decisions
flowed from it. Without an “objective showing of a loss in compensation, duties,
or benefits,” there is no adverse employment action. Pegram v. Honeywell, Inc.,
361 F.3d 272, 283 (5th Cir. 2004). The district court rightly concluded that Wat-
kins has not made a prima facie case of an adverse employment decision.
As to the fourth prong of the test, Watkins relies on differences between
the midyear job performance feedback she received and that given to two of her
younger, male colleagues before their respective 2004 evaluations. Specifically,
she claims that her feedback was less clear and detailed than was theirs.6 Be-
cause we sustain the district court’s finding that Watkins failed to demonstrate
any adverse employment action, we affirm the summary judgment on her dis-
crimination claims regardless of whether she showed disparate treatment. We
4
See Burlington N., 548 U.S. at 67 (“For these reasons, we conclude that title VII’s sub-
stantive provision and its anti-retaliation provision are not coterminous. The scope of the anti-
retaliation provision extends beyond workplace-related or employment-related retaliatory acts
and harm.”).
5
Watkins relies on cases such as Mattern v. Eastman Kodak Co., 104 F.3d 702 (5th Cir.
1997), in urging that title VII’s retaliation provisions are in fact narrower than its discrimina-
tion provisions. Because Burlington Northern held the opposite, there is no reason to rely on
abrogated precedent.
6
Watkins does not appear to assert that she was treated less favorably in the evalua-
tion itself. The district court found no evidence to support such an assertion.
4
No. 08-20408
agree, though, with the district court that Watkins’s feedback was quite thor-
ough and not materially “less favorable.”
III.
Watkins argues that her score on the 2004 review was retaliation for sepa-
rate and unrelated EEO complaints she filed in July 2002 and September 2003.
To establish a prima facie case of retaliation, she must show that “(1) [she] parti-
cipated in an activity protected by title VII; (2) [her] employer took an adverse
employment action against [her]; and (3) a causal connection exists between the
protected activity and the adverse employment action.” McCoy, 492 F.3d at 556-
57. Although Watkins’s prior EEO complaints satisfied the first prong of this
test, she plainly has not satisfied the third.
The district court’s conclusion that Watkins has failed to establish the nec-
essary causal connection between her EEO complaint and her 2004 review is ad-
equate to justify summary judgment. Although mere temporal proximity may
be sufficient prima facie evidence (though not proof) of causation, the proximity
must be close where there is no other such evidence. See Strong v. Univ.
HealthCare Sys., L.L.C., 482 F.3d 802, 808 (5th Cir. 2007).
We agree that the twenty-two-month delay between Watkins’s 2002 EEO
complaint and her 2004 evaluation is far too distant to establish a prima facie
case.7 We note in addition that in the summer of 2003, while her 2002 complaint
(then ten months old) was still pending, Watkins received a score of 4.0 on her
review for the fiscal year ending in May 2003. It was not until later that sum-
7
See Strong, 482 F.3d at 802 (stating that three and one-half months is insufficient to
show causation); Grizzle v. Travelers Health Network, Inc., 14 F.3d 261, 268 (5th Cir. 1994)
(concluding that ten-month delay “does not support an inference of retaliation, and rather,
suggests that a retaliatory motive was highly unlikely”); Clark County Sch. Dist. v. Breeden,
532 U.S. 268, 273 (2001) (“Action taken (as here) 20 months later suggests, by itself, no causal-
ity at all.”).
5
No. 08-20408
mer, two months before she filed her September EEO complaint, that her super-
visor began giving her “interim notices” of decreased performance that were later
reflected on her 2004 review. To the extent that her evaluation was lower in
2004 than before, the record shows that the same is true of all of her co-workers.
This undermines any inference that she was singled out for harsh treatment.
Because we affirm on the district court’s finding that the third prong is un-
satisfied, we need not consider whether Watkins’s score on her 2004 review con-
stituted an adverse employer action. She claims to have been mistreated by her
supervisors, but most of the behavior she alleges does not rise beyond the level
of “petty slights, minor annoyances, and simple lack of good manners that em-
ployees regularly encounter in the workplace, and which the Supreme Court has
recognized are not actionable retaliatory conduct.” Aryain v. Wal-Mart Stores
Tex. LP, 534 F.3d 473, 485 (5th Cir. 2008). To the extent that Watkins alleges
more serious misconduct by her superiors, she presents no evidence in support.
AFFIRMED.
6