Almendarez v. USA

• Court: Court of Appeals for the Fifth Circuit
• Decided: March 24, 2004
• Docket: 95-20540
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

______________

No. 95-20540 Summary Calendar ______________

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* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4.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.