UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-30929
VIVIAN PIPER,
Plaintiff-Appellant,
VERSUS
ANN VENEMAN, Secretary, Department of Agriculture, National Finance Center,
Defendant-Appellee.
Appeal from the United States District Court For the Eastern District of Louisiana (98-CV-3647-L) June 13, 2001 Before EMILIO M. GARZA and PARKER, Circuit Judges, and ELLISON, District Judge.*
ROBERT M. PARKER, Circuit Judge:**
Plaintiff Vivian Piper appeals the summary judgment awarded
defendant Daniel Glickman, Secretary, Department of Agriculture,
* District Judge of the Southern District of Texas, sitting by designation. ** 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
1 National Finance Center (“NFC”), in her employment discrimination
suit. We affirm.
I. FACTS AND PROCEDURAL HISTORY
Piper, an African-American female, is a Systems Accountant at
NFC’s office in New Orleans, Louisiana. She has been employed
there since June 1974 and in her current position since 1985. She
brought suit pursuant to Title VII of the Civil Rights Act of 1964,
codified in 42 U.S.C. § 2000(e) et seq., alleging that NFC
discriminated against her because of her race, sex, and age,1 and
retaliated against her because of her prior complaints to the Equal
Employment Opportunity Commission (“EEOC”).
On August 27, 1980, Piper filed a formal complaint against NFC
alleging that NFC had discriminated against her because race, sex
and in reprisal for her previous EEOC activities. She specifically
alleged that she was not selected for promotion; she was denied
training; part of her job duties were transferred to others; she
was harassed by her supervisor; she was denied overtime
assignments; and she received a low performance rating. On
September 25, 1985, the EEOC entered a finding of discrimination
with regard to NFC’s issuance of Piper’s performance appraisal, her
non-promotion, and the denial of overtime. NFC was directed to
1 Although Piper mentions that she is asserting an age discrimination claim, that claim is without merit as it was not supported by evidence or argued in the district court or in this court.
2 promote Piper to the position of Supervisory Operating Accountant,
reimburse her for the overtime pay she would have received absent
discrimination and take appropriate disciplinary action against the
decision-makers at NFC who were responsible for the discrimination.
See Piper v. Department of Agriculture, Appeal No. 01832501 (EEOC
Office of Review and Appeals Sept. 25, 1985).
Piper filed suit against NFC in federal district court in
1991, alleging that NFC had continued to discriminate against her.
The parties reached a settlement agreement and an agreed judgment
of dismissal was entered on June 22, 1994.
Piper filed the present suit in December 1998, alleging that
she was denied promotions because she is African-American, female
and is perceived as a trouble-maker for filing 32 EEOC complaints
and a law suit against NFC. She also claimed that she had been
given a low performance rating and improper evaluations, denied
cash awards, passed over for promotions while other employees with
lesser qualifications were promoted, evaluated with subjective
criteria, given fewer job responsibilities, and reassigned to
positions outside her line of work.
Defendants moved for summary judgment. The district court
found that the summary judgment evidence, taken in the light most
favorable to Piper, supported a prima facie case of discrimination
and retaliation as to her failure to promote claims. Although it
was unclear whether her allegations of other discriminatory and
3 retaliatory acts by NFC were independent claims, the district court
held that none of them were ultimate employment actions protected
by Title VII, citing Schackelford v. Deloitte & Touche, LLP, 190
F.3d 398, 406-07 (5th Cir. 1999).
The burden then shifted to NFC to articulate a
nondiscriminatory reason for failing to promote Piper. NFC
explained that other candidates were better qualified for the
positions to which Piper applied. First, NFC explained that it
awarded a position of Chief of Payroll/Personnel Branch (NFC 97-
004) to a candidate who had nineteen years of supervisory
experience, seventeen of which were in the payroll/personnel area.
Also, the selectee had been acting as a branch chief in his
supervisor’s absence. In 1996, NFC selected another candidate with
nineteen years of relevant experience for the position of
Supervisory Systems Accountant (NFC 95-087) who had also been
section head for the branch for the eight preceding years. The
individual chosen for the position of Branch Chief of the
Accounting Reconciliation Branch (NFC 94-017) had served as section
chief for six years. The selecting official for the position of
Supervisory Systems Accountant (NFC 93-044) was an African-American
female who chose a candidate with seven years of specific
experience and strong analytical skills. For the position of
Accounting Reporting Branch Chief (NFC 97-064), NFC promoted an
African-American female with eighteen years of experience in the
4 Accounting Reporting Branch and nine years of supervisory
experience as a section head. A sixteen-year veteran who had
managed and supervised the Billings and Collection Branch was
chosen for the position of Billings and Collections Branch Chief.
Finally, NFC stated that an individual with nineteen years of
experience with the Payroll Accounting Section was chosen to be
head of Payroll Accounting Section (NFC 97-045).
The district court determined that NFC’s articulation of non-
discriminatory reasons for not promoting Piper shifted the burden
back to Piper to demonstrate that the reasons given were
pretextual. After considering Piper’s allegations and summary
judgment evidence, the district court found that the evidence did
not raise a genuine issue of material fact concerning whether the
defendant’s non-discriminatory explanations were pretextual. Piper
had only one year of supervisory experience while each of the other
candidates served from nine to nineteen years as supervisors.
Contrary to Piper’s allegations, NFC selected both women and
African-Americans for supervisory positions. In fact, one
supervisor who did not select Piper for a promotion is herself an
African-American woman.
Finally, the district court held that the evidence does not
support Piper’s retaliation claim. The court determined that she
was not promoted because she was not as well-qualified as other
candidates, ans she had offered only her belief that she was denied
a promotion because of her prior EEOC complaints. Even if her
5 history of discrimination complaints contributed to the decisions
not to promote her, the district court held that she cannot
establish liability for unlawful retaliation if NFC would have
denied her promotions notwithstanding her complaints to the EEOC,
citing Long v.
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UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-30929
VIVIAN PIPER,
Plaintiff-Appellant,
VERSUS
ANN VENEMAN, Secretary, Department of Agriculture, National Finance Center,
Defendant-Appellee.
Appeal from the United States District Court For the Eastern District of Louisiana (98-CV-3647-L) June 13, 2001 Before EMILIO M. GARZA and PARKER, Circuit Judges, and ELLISON, District Judge.*
ROBERT M. PARKER, Circuit Judge:**
Plaintiff Vivian Piper appeals the summary judgment awarded
defendant Daniel Glickman, Secretary, Department of Agriculture,
* District Judge of the Southern District of Texas, sitting by designation. ** 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.
1 National Finance Center (“NFC”), in her employment discrimination
suit. We affirm.
I. FACTS AND PROCEDURAL HISTORY
Piper, an African-American female, is a Systems Accountant at
NFC’s office in New Orleans, Louisiana. She has been employed
there since June 1974 and in her current position since 1985. She
brought suit pursuant to Title VII of the Civil Rights Act of 1964,
codified in 42 U.S.C. § 2000(e) et seq., alleging that NFC
discriminated against her because of her race, sex, and age,1 and
retaliated against her because of her prior complaints to the Equal
Employment Opportunity Commission (“EEOC”).
On August 27, 1980, Piper filed a formal complaint against NFC
alleging that NFC had discriminated against her because race, sex
and in reprisal for her previous EEOC activities. She specifically
alleged that she was not selected for promotion; she was denied
training; part of her job duties were transferred to others; she
was harassed by her supervisor; she was denied overtime
assignments; and she received a low performance rating. On
September 25, 1985, the EEOC entered a finding of discrimination
with regard to NFC’s issuance of Piper’s performance appraisal, her
non-promotion, and the denial of overtime. NFC was directed to
1 Although Piper mentions that she is asserting an age discrimination claim, that claim is without merit as it was not supported by evidence or argued in the district court or in this court.
2 promote Piper to the position of Supervisory Operating Accountant,
reimburse her for the overtime pay she would have received absent
discrimination and take appropriate disciplinary action against the
decision-makers at NFC who were responsible for the discrimination.
See Piper v. Department of Agriculture, Appeal No. 01832501 (EEOC
Office of Review and Appeals Sept. 25, 1985).
Piper filed suit against NFC in federal district court in
1991, alleging that NFC had continued to discriminate against her.
The parties reached a settlement agreement and an agreed judgment
of dismissal was entered on June 22, 1994.
Piper filed the present suit in December 1998, alleging that
she was denied promotions because she is African-American, female
and is perceived as a trouble-maker for filing 32 EEOC complaints
and a law suit against NFC. She also claimed that she had been
given a low performance rating and improper evaluations, denied
cash awards, passed over for promotions while other employees with
lesser qualifications were promoted, evaluated with subjective
criteria, given fewer job responsibilities, and reassigned to
positions outside her line of work.
Defendants moved for summary judgment. The district court
found that the summary judgment evidence, taken in the light most
favorable to Piper, supported a prima facie case of discrimination
and retaliation as to her failure to promote claims. Although it
was unclear whether her allegations of other discriminatory and
3 retaliatory acts by NFC were independent claims, the district court
held that none of them were ultimate employment actions protected
by Title VII, citing Schackelford v. Deloitte & Touche, LLP, 190
F.3d 398, 406-07 (5th Cir. 1999).
The burden then shifted to NFC to articulate a
nondiscriminatory reason for failing to promote Piper. NFC
explained that other candidates were better qualified for the
positions to which Piper applied. First, NFC explained that it
awarded a position of Chief of Payroll/Personnel Branch (NFC 97-
004) to a candidate who had nineteen years of supervisory
experience, seventeen of which were in the payroll/personnel area.
Also, the selectee had been acting as a branch chief in his
supervisor’s absence. In 1996, NFC selected another candidate with
nineteen years of relevant experience for the position of
Supervisory Systems Accountant (NFC 95-087) who had also been
section head for the branch for the eight preceding years. The
individual chosen for the position of Branch Chief of the
Accounting Reconciliation Branch (NFC 94-017) had served as section
chief for six years. The selecting official for the position of
Supervisory Systems Accountant (NFC 93-044) was an African-American
female who chose a candidate with seven years of specific
experience and strong analytical skills. For the position of
Accounting Reporting Branch Chief (NFC 97-064), NFC promoted an
African-American female with eighteen years of experience in the
4 Accounting Reporting Branch and nine years of supervisory
experience as a section head. A sixteen-year veteran who had
managed and supervised the Billings and Collection Branch was
chosen for the position of Billings and Collections Branch Chief.
Finally, NFC stated that an individual with nineteen years of
experience with the Payroll Accounting Section was chosen to be
head of Payroll Accounting Section (NFC 97-045).
The district court determined that NFC’s articulation of non-
discriminatory reasons for not promoting Piper shifted the burden
back to Piper to demonstrate that the reasons given were
pretextual. After considering Piper’s allegations and summary
judgment evidence, the district court found that the evidence did
not raise a genuine issue of material fact concerning whether the
defendant’s non-discriminatory explanations were pretextual. Piper
had only one year of supervisory experience while each of the other
candidates served from nine to nineteen years as supervisors.
Contrary to Piper’s allegations, NFC selected both women and
African-Americans for supervisory positions. In fact, one
supervisor who did not select Piper for a promotion is herself an
African-American woman.
Finally, the district court held that the evidence does not
support Piper’s retaliation claim. The court determined that she
was not promoted because she was not as well-qualified as other
candidates, ans she had offered only her belief that she was denied
a promotion because of her prior EEOC complaints. Even if her
5 history of discrimination complaints contributed to the decisions
not to promote her, the district court held that she cannot
establish liability for unlawful retaliation if NFC would have
denied her promotions notwithstanding her complaints to the EEOC,
citing Long v. Eastfield College, 88 F.3d 300, 305 n.4. (5th Cir.
1996).
II. ANALYSIS
A. Standard of Review
We review a grant of summary judgment de novo and apply the
same standards as the district court. Benningfield v. City of
Houston, 157 F.3d 369, 374 (5th Cir. 1998). If the summary
judgment evidence shows that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment
as a matter of law, the summary judgment entered by the district
court will be affirmed. See FED.R.CIV.P. 56(c).
B. Proof of Past Discrimination
Piper contends on appeal that the district court erred in by
failing to properly consider NFC’s past discrimination against her.
First, Piper argues that the Title VII burden-shifting
construct articulated in McDonnell Douglas Corp. v. Green, 411 U.S.
792, 802 (1973), and Texas Dep’t of Community Affairs v. Burdine,
450 U.S. 248, 249-50 (1981), must be modified in this case because
NFC had discriminated against her in the past. Piper reasons that
once she made out her prima facie case and proved that NFC had
6 previously discriminated against her, the burden shifted to NFC to
prove by clear and convincing evidence (rather than preponderance
of the evidence) that its decisions regarding her employment were
motivated by legitimate, non-discriminatory reasons. For this
proposition, she relies on a line of cases stemming from Keyes v.
School District No. 1, 413 U.S. 189 (1973). In Keyes, the Supreme
Court “thrust upon the School Board the burden of justifying its
conduct by clear and convincing evidence” because the school had a
history of segregation coupled with the discharge of a large number
of African-American teachers incident to desegregation. Id. at
209. The Fifth Circuit has required local boards of education to
meet the stringent Keyes evidentiary burden when plaintiffs have
proved an immediate past history of racial discrimination in a
recently desegregated school district. See Lee v. Conecuh County
Board of Education, 634 F.2d 959, 963 (5th Cir. 1981); see also Lee
v. Washington County Board of Education, 625 F.2d 1235, 1237 (5th
Cir. 1980). Although this circuit has imposed a similar burden in
Title VII class action cases, see Baxter v. Savannah Sugar Refining
Corp., 495 F.2d 437 (5th Cir. 1974), that burden is not applicable
in the context of individual discrimination cases.
Keyes and its progeny shifted the burden of persuasion in
cases where the defendant had a history of discrimination and where
significant numerical disparities existed in the employer’s
treatment of minority employees. Piper’s case does not fall into
7 that category of cases. Piper alleges, instead, that NFC has a
history of discriminating against her personally. The Supreme
Court has consistently held that the ultimate burden of persuading
the trier of fact that the defendant discriminated against
plaintiff in an individual, disparate-treatment case remains at all
times with the plaintiff. Burdine, 450 U.S. at 256. We therefore
find that the district court did not err in rejecting Piper’s Keyes
analysis.
In related grounds of error, Piper complains that the district
court failed to adequately take into consideration NFC’s
predisposition toward discrimination which she established by
proffering evidence that NFC had previously discriminated against
her. As the district court noted, Piper did not offer evidence
which refuted the district court’s conclusion that the individuals
who were selected for promotions were better qualified for the
positions than she was. See Nichols v. Loral Vought Systems Corp.,
81 F.3d 38, 42 (5th Cir. 1996) (holding that in order to rebut
employer’s articulated non-discriminatory reason that plaintiff was
not as well-qualified as the workers that employer had selected,
plaintiff must offer sufficiently specific basis for claim that he
was in fact the better-qualified worker). Moreover, one of the
promoted employees was African-American, another was female, and
one of the selecting officials in another promotion was an African-
American female. We find no error in the district court’s view of
8 the evidence.
C. Interim change in Title VII law
The district court filed its Order and Reasons on June 7,
2000, and the Final Judgment on June 14, 2000. In the interim, on
June 12, 2000, the Supreme Court resolved a split among the
circuits on the issue of whether a defendant is entitled to
judgment as a matter of law where a plaintiff’s case consists only
of a prima facie case under McDonnell Douglas and sufficient
evidence for a reasonable trier or fact to reject the defendant’s
legitimate, non-discriminatory explanation for its decision. See
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 140
(2000). The Supreme Court held that such evidence is sufficient
for a plaintiff to withstand a grant of judgment as a matter of law
in favor of the defendant. Id. at 148. Even if the district court
had applied the new Reeves standard, Piper’s case cannot survive
summary judgment because she did not present evidence sufficient
for a reasonable trier of fact to reject NFC’s nondiscriminatory
explanation for its decisions.
D. Actionable Adverse Employment Actions
Piper next alleges that the district erred by focusing only
on NFC’s failure to promote her and denying her relief on her
claims of discrimination and retaliation related to performance
evaluations, cash awards, assignment of duties, and supervision by
a lower-grade employee. Piper identifies no evidence, and our
9 review of the record has uncovered none, that she suffered any
actionable employment actions other than NFC’s failure to promote
her.
Piper contends in a related argument that she has alleged
twelve instances of tangible employment action in addition to the
four that the district court examined in detail. Having examined
the record, we agree with the district court that the summary
judgment evidence presents no genuine issue of material fact
concerning Piper’s additional allegations of “non-promotional
claims,” which consist of her twelve EEOC complaints that did not
pertain to NFC’s failure to promote her.
III. CONCLUSION
We therefore conclude that the district court did not err in
denying Piper relief on her claims for relief based on any of the
alleged employment decisions, and we affirm the entry of summary
judgment for NFC.
AFFIRMED.