IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
______________
No. 95-20540
Summary Calendar
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MARY ALMENDAREZ, Plaintiff-Appellant,
versus
UNITED STATES OF AMERICA, THE UNITED STATES DEPARTMENT OF
LABOR, LAWRENCE W ROGERS MARILYN FELKNER, JOE OLIMPIO,
Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
(CA-H-93-3797)
_________________________________________________________________
February 8, 1996
Before KING, SMITH, and BENAVIDES, Circuit Judges.
FORTUNATO P. BENAVIDES*:
Plaintiff-Appellant Mary Almendarez ("Almendarez") appeals the
district court's granting of Defendants-Appellees' motion for
summary judgment on Almendarez's retaliation claim based on her
failure to raise a fact issue on pretext. Finding that Almendarez
has failed to make a showing sufficient to raise a genuine issue of
material fact that Defendants-Appellees' legitimate,
nondiscriminatory reason for not promoting her was pretextual, we
affirm.
*
Pursuant to Local Rule 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.
I.
This appeal arises out of a Title VII action filed by
Almendarez, alleging employment discrimination based on national
origin and sex, and retaliation for having filed previous
employment discrimination complaints. Almendarez, a Hispanic
female employed by the United States Department of Labor as a GS-12
claims examiner in the Houston District Office of Workers'
Compensation Programs, applied for a GS-13 district director
position along with four others in 1991.1 After oral interviews
were complete, Almendarez was informed that Chris Gleasman
("Gleasman"), a white male, was selected for the district director
position. Prior to the time that she filed her application for the
district director position, Almendarez had filed three employment
discrimination complaints.
After learning that Gleasman had been selected for the
district director position, Almendarez filed a formal Equal
Employment Opportunity ("EEO") complaint charging sex and national
origin discrimination and reprisal for her filing prior EEO
complaints. When she received her right to sue letter, Almendarez
filed suit in district court against Defendants-Appellees.
Defendants-Appellees filed a motion for summary judgment,
which the district court granted. First addressing Almendarez's
claim of discrimination based on sex and national origin, the court
found that Almendarez had made a prima facie case of discrimination
1
Two of the five applicants were disqualified early in the
selection process.
2
based on sex and national origin, and that Defendants-Appellees had
proffered a legitimate, nondiscriminatory reason for not promoting
Almendarez. The court observed that Almendarez's and Gleasman's
education, work experience and work performance were equivalent,
but that the selecting official, Carol Fleschute ("Fleschute"),
chose Gleasman based on his responses during his personal
interview.2 The court also noted that Fleschute's decision was
approved by here own supervisor and the head of the Employment
Standards Administration Personnel Division. The court concluded,
however, that Almendarez had not raised a genuine issue of material
fact that Defendants-Appellees' legitimate, nondiscriminatory
reason for promoting Gleasman was pretextual.
Next addressing Almendarez's retaliation claim, the district
court acknowledged that Fleschute did know of Almendarez's previous
EEO complaints, but found that Almendarez failed to provide any
evidence from which one could infer that Fleschute objected to or
resented Almendarez's prior EEO complaints, or that Almendarez
would have received the promotion "but for" her prior filings.
Almendarez only appeals the district court's decision on her
retaliation claim.
II.
Almendarez argues that the summary judgment evidence clearly
shows that her immediate supervisor, Marilyn Felkner ("Felkner"),
shared information regarding Almendarez with Fleschute.
2
The court's memorandum and order included thirteen
interview responses that made Gleasman a superior candidate for the
district director position.
3
Specifically, Almendarez asserts that the only way Fleschute could
have knowledge of her past performance and EEO filings was from
Felkner, who Almendarez claims did not like her.
We review the district court's grant of summary judgment de
novo, applying that same standards as the district court. Netto v.
Amtrack, 863 F.2d 1210, 1212 (5th cir. 1989) (citing Ayo v. Johns-
Manville Sales Corp., 771 F.2d 902, 904 (5th Cir. 1985)). After
reviewing the record, we find that Almendarez has failed to raise
a genuine issue of material fact tending to show that Fleschute's
decision not to promote Almendarez was pretextual. As the district
court stated in its memorandum and order, "[s]omething beyond mere
knowledge of past events needs to be shown to raise a fact issue
that the decision maker has unlawfully applied or used that
knowledge in making her employment decision."3 We find in this
case that the mere opportunity Fleschute had to base her decision
on Almendarez's previous EEO filings is not sufficient evidence
from which a jury could infer that her decision not to promote
Almendarez was pretextual. Almendarez has not provided any
evidence tending to show that Fleschute's decision was influenced
by Almendarez's previous filings. Therefore, we find that
Almendarez has failed to raise a genuine issue of material fact on
pretext.
3
See Johnson v. Sullivan, 945 F.2d 976, 981 (7th Cir. 1991).
4
III.
For the reasons articulated above, the order of the district
court granting Defendants-Appellees' motion for summary judgment is
AFFIRMED.
5