Case: 12-20337 Document: 00512167888 Page: 1 Date Filed: 03/07/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 7, 2013
No. 12-20337 Lyle W. Cayce
Clerk
GWENDOLYN L. JONES,
Plaintiff-Appellant
v.
BP AMOCO CHEMICAL COMPANY,
Defendant-Appellee
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:10-CV-01399
Before DAVIS, GRAVES, and HIGGINSON, Circuit Judges.
PER CURIAM:*
Gwendolyn L. Jones appeals the district court’s granting of BP Amoco
Chemical Company’s (“BPACC”) motion for summary judgment on her Title VII
of the Civil Rights Act of 1964 (“Title VII”) complaint for race and sex
discrimination and for retaliation. Jones, an African American woman, claims
BPACC discriminated against her by putting her on a special performance plan
and denying her access to field trainers during the performance plan period. She
also claims BPACC retaliated against her for filing a complaint with the BPACC
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Case: 12-20337 Document: 00512167888 Page: 2 Date Filed: 03/07/2013
No. 12-20337
ombudsman by causing a lapse in her insurance coverage. She argues the lapse
occurred when BPACC paid her for all of her unused vacation benefits, rather
than for only half the unused vacation benefits as she requested. We refer to the
district court’s order for a more detailed accounting of the facts.
“We review the grant of a motion for summary judgment de novo, applying
the same standard as the district court.” Jackson v. Cal-Western Packaging
Corp., 602 F.3d 374, 377 (5th Cir. 2010). “We view the evidence in the light most
favorable to the non-moving party and avoid credibility determinations and
weighing of the evidence.” Id. We may affirm the district court’s judgment on
any basis supported by the record. United States v. Taylor, 482 F.3d 315, 318
(5th Cir. 2007).
Jones argues for the first time on appeal that she suffered from a hostile
work environment and/or continuing violation that makes her Styrene Unit
claim timely. We do not address this argument because she has waived it by not
raising it before the district court. Wagstaff v. U.S. Dep’t of Educ., 509 F.3d 661,
664 n.2 (5th Cir. 2007) (declining to consider issues presented for the first time
on appeal); Leverette v. Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir. 1999)
(same). Her remaining claims, then, are discrimination during her time in the
PX2 Unit and retaliation for her complaint to the BPACC ombudsman.
To plead a prima facie case of discrimination under Title VII, a plaintiff
must show that “(1) she is a member of a protected class, (2) she was qualified
for her position, (3) she suffered an adverse employment action, and (4) others
similarly situated were more favorably treated.” Willis v. Coca Cola Enters.,
Inc., 445 F.3d 413, 420 (5th Cir. 2006) (quoting Rutherford v. Harris Cnty., Tex.,
197 F.3d 173, 184 (5th Cir. 1999)). We agree with the district court for the
reasons articulated in its order that Jones has failed to present competent
summary judgment evidence that other similarly situated non-protected
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No. 12-20337
employees were treated more favorably than she was. Therefore, Jones’s
discrimination claim from her time in the PX2 Unit fails.
To establish a prima facie case of retaliation under Title VII, a plaintiff
must show: (1) she engaged in protected activity; (2) she was subjected to an
adverse employment action; and (3) a causal link existed between the protected
activity and the adverse employment action. Banks v. E. Baton Rouge Parish
Sch. Bd., 320 F.3d 570, 575 (5th Cir. 2003). We agree with the district court for
the reasons articulated in its order that BPACC’s payment of all Jones’s unused
vacation benefits according to company policy was not an adverse employment
action. Therefore, Jones’s retaliation claim fails.
AFFIRMED.
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