United States Court of Appeals Fifth Circuit F I L E D REVISED JULY 13, 2007 IN THE UNITED STATES COURT OF APPEALS January 30, 2007 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III )))))))))))))))))))))))))) Clerk
No. 06-40751
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ALMA RAMIREZ,
Plaintiff-Appellant,
versus
ALBERTO GONZALES, ATTORNEY GENERAL OF THE UNITED STATES,
Defendant-Appellee.
Appeal from the United States District Court for the Southern District of Texas No. 5:03-CV-372
Before DeMOSS, STEWART, and PRADO, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Alma Ramirez (“Ramirez”) appeals the
district court’s granting of Defendant-Appellee Alberto Gonzales’s1
motion for summary judgment on Ramirez’s race/national origin
discrimination and retaliation claims under Title VII of the Civil
* Pursuant to 5TH CIRCUIT RULE 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIRCUIT RULE 47.5.4. 1 Though the Attorney General is the named party to the lawsuit, this opinion shall refer to the Defendant-Appellee as the United States Attorney’s Office, Corpus Christi office, (“USAO”) because Ramirez’s Title VII claims arise from her employment there. Rights Act of 1964. Because no genuine issues of material fact
exist with respect to Ramirez’s claims, we AFFIRM the district
court’s grant of summary judgment.
I. FACTUAL AND PROCEDURAL HISTORY
In July 2001, the USAO hired Ramirez, a Hispanic, as a
Litigation Support Specialist with a one-year probationary period.
The primary duties of the position included providing technology and
automated litigation services to the attorneys and support staff,
aiding Assistant United States Attorneys (“AUSAs”) in trial
preparation and presentations, coordinating and providing personnel
training on litigation support equipment and research techniques,
and developing databases and reports for litigation and
administrative purposes. Ramirez would not survive the probationary
period. On January 7, 2002, the USAO sent Ramirez a letter
informing her that she would be terminated for her “inability to
follow office procedures essential to the proper handling of cases
in the United States Attorney’s office” and her “failure to
recognize and react to office needs.” Ramirez alleges that her
termination was the result of race/national origin discrimination
and in retaliation for engaging in protected Title VII activities.
Ramirez contends that Debra Hohle (“Hohle”), her supervisor and
the Office Manager, subjected her to disparate treatment throughout
her employment. First, Ramirez argues that Hohle treated her like
a secretary instead of a Litigation Support Specialist and made her
2 perform secretarial tasks such as answering the phone, serving as
a receptionist, processing mail, and acknowledging visitors.
Second, Ramirez maintains that she was treated differently than two
white employees, Diana Winstead (“Winstead”) and Julie Gerardi
(“Gerardi”), who she alleges had similar workplace performance
deficiencies, but who were allowed to pass their probationary
periods. Third, Ramirez argues that Hohle improperly terminated her
because Hohle did not give her a formal written letter of
counseling, warning Ramirez of her deficiencies and giving her a
chance to respond to the allegations.
In addition to race/national origin discrimination, Ramirez
alleges that her termination was the result of unlawful retaliation.
Ramirez alleges that Hohle retaliated against her because of her
friendship and close association with Adel Garcia (“Garcia”), a
Hispanic employee who had filed an EEOC charge of discrimination and
retaliation against the USAO before Ramirez began her employment
there. Ramirez also contends that she was retaliated against
because in October 2001, the American Federation of Government
Employees, Local 3966 (“Union”) filed a grievance against the USAO
which alleged, in part, a hostile working environment, preferential
treatment of certain employees, and discrimination against certain
employees. Finally, Ramirez recounts an incident in which she
overheard co-workers joking about another employee’s hostile work
environment claim. Ramirez asked the co-workers to stop and
reported the comments to Gerardi, who was acting as Office Manager
3 in Hohle’s absence. Ramirez alleges that this incident was a
predicate for retaliation.
After her termination, Ramirez brought a Title VII suit against
the USAO, alleging race/national origin discrimination and
retaliation. The USAO filed for summary judgment, which the
district court granted on February 23, 2006. Ramirez now appeals.
II. JURISDICTION AND STANDARD OF REVIEW
This appeal arises from a final judgment of the district court,
so we have jurisdiction over this appeal under 28 U.S.C. § 1291.
This court reviews a summary judgment de novo. Dallas County
Hosp. Dist. v. Assocs. Health & Welfare Plan, 293 F.3d 282, 285 (5th
Cir. 2002). Summary judgment is proper when the pleadings, discovery
responses, and affidavits show that there is no genuine issue of
material fact and that the moving party is entitled to a judgment
as a matter of law. FED. R. CIV. P. 56(c). A dispute about a
material fact is genuine if the evidence is such that a reasonable
jury could return a verdict for the non-moving party. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When deciding
whether there is a genuine issue of material fact, this court must
view all evidence in the light most favorable to the non-moving
party. Daniels v. City of Arlington, 246 F.3d 500, 502 (5th Cir.
2001).
III. DISCUSSION
Title VII prohibits an employer from intentionally
4 discriminating against any employee based on the employee’s race or
national origin, 42 U.S.C. § 2000e-2(a)(1). Intentional
discrimination may be established through either direct or
circumstantial evidence. Wallace v. Methodist Hosp. Sys., 271 F.3d
212, 219 (5th Cir. 2001). When there is no direct evidence of
discrimination, as in this case, the Title VII claims are subject
to the burden-shifting framework established in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). See Davis v. Dallas Area Rapid
Transit, 383 F.3d 309, 316 (5th Cir. 2004).
Under the McDonnell Douglas framework, the employee must create
a presumption of intentional discrimination or retaliation by
presenting evidence to establish a prima facie case. Davis, 383
F.3d at 317. Once the employee has established the prima facie
case, the burden then shifts to the employer to articulate a
legitimate, non-discriminatory or non-retaliatory reason for the
underlying employment action. Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 142 (2000). The employer’s burden is “one of
production, not persuasion; it can involve no credibility
assessment.” Id. If the employer sustains this burden, the
presumption of discrimination or retaliation falls away, and the
burden shifts back to the employee to establish that the employer’s
proffered reason is merely a pretext for discrimination or
retaliation. Davis, 383 F.3d at 317. Courts must be mindful that
despite the shifting evidentiary framework, the “ultimate burden of
persuading the trier of fact . . . remains at all times with the
5 plaintiff.” Reeves, 530 U.S. at 143.
A. Race/National Origin Discrimination
Ramirez contends that her termination was the result of
race/national origin discrimination in violation of Title VII. In
order to establish a prima facie case of discriminatory discharge,
Ramirez must prove that: (1) she is a member of a protected class;
(2) she was qualified for the position she held; (3) she suffered
an adverse employment action; and (4) she was replaced by a person
outside of her protected class. See Wheeler v. BL Dev. Corp., 415
F.3d 399, 405 (5th Cir. 2005). It is undisputed that Ramirez
established a prima facie case of discriminatory discharge.
Because Ramirez has met her initial burden of establishing a
prima facie case of discriminatory discharge, the burden then shifts
to the USAO to articulate a legitimate, non-discriminatory reason
for Ramirez’s termination. The USAO points to its January 7, 2002
termination letter as evidence of its legitimate, non-discriminatory
reasons for terminating Ramirez. The letter stated that Ramirez
“demonstrated an inability to follow office procedures essential to
the proper handling of cases” in the USAO. As evidence in support
of this claim, the letter cites to the facts that Ramirez (1) failed
to complete reports, (2) refused to answer telephone calls despite
being instructed to do so by Hohle, (3) did not assist an AUSA
because Ramirez believed the task was not within her job
description, (4) made excessive personal telephone calls, and (5)
left a training program early without permission. The letter also
6 noted that Ramirez failed to “recognize and react to office needs.”
Examples of this alleged deficiency included Ramirez’s failure to
(1) respond to or acknowledge visitors when they entered the office
and (2) mention that an attorney who was unexpectedly unable to
return to the office had charged her with preparing photo exhibits
in two pending cases. The USAO produced deposition testimony to
substantiate the allegations in the termination letter.
Having met its burden of establishing legitimate, non-
discriminatory reasons for Ramirez’s termination, the burden now
shifts to Ramirez to establish that these reasons were merely
pretexts for discrimination. Ramirez first attempts to meet this
burden by disputing the USAO’s characterization of her job
performance and providing some explanations for her alleged
deficiencies. To take one example, Ramirez contends that she made
personal telephone calls before work.
Ramirez cannot survive summary judgment simply by denying or
explaining her alleged deficiencies. The proper inquiry is “whether
[the USAO]’s perception of [Ramirez]’s performance, accurate or not,
was the real reason for her termination.” Shackleford v. Deloitte
& Touche, LLP, 190 F.3d 398, 408-409 (5th Cir. 1999); see also
Laxton v. Gap Inc., 333 F.3d 572, 579 (5th Cir. 2003) (“[The
inquiry] is not whether [the employer]’s proffered reason was an
incorrect reason for [the discharge]”). As we explained in Mayberry
v. Vought Aircraft Co.:
7 [E]ven an incorrect belief that an employee’s performance is inadequate constitutes a legitimate, nondiscriminatory reason. We do not try in court the validity of good faith beliefs as to an employee’s competence. Motive is the issue . . . [A] dispute in the evidence concerning . . . job performance does not provide a sufficient basis for a reasonable factfinder to infer that [the] proffered justification is unworthy of credence.
55 F.3d 1086, 1091 (5th Cir. 1991). Ramirez has provided no
evidence that Hohle and the USAO did not perceive her job
performance as deficient. In fact, the incontrovertible summary
judgment evidence shows that Hohle received numerous complaints
about Ramirez’s job performance from staff colleagues, AUSAs, and
an outside caller.
Ramirez also attempts to show pretext by arguing that two white
employees, Winstead and Gerardi, were allowed to pass their
probationary period despite deficiencies similar to those which
resulted in Ramirez’s termination. In order to prove disparate
treatment, Ramirez must demonstrate “that the misconduct for which
she was discharged was nearly identical to that engaged in by a[n]
employee [not within her protected class] whom [the employer]
retained.” Wallace, 271 F.3d at 221. As the district court ably
demonstrated, the summary judgment record does not support Ramirez’s
contention that she was treated differently under nearly identical
circumstances. First, Ramirez was not similarly situated to
Winstead, a legal secretary, and Gerardi, a paralegal specialist,
because they both held positions different from that of Ramirez with
different job duties. Although all three shared some minor
8 secretarial duties, Ramirez’s own self-prepared weekly work
assignment reports showed that the majority of her tasks were not
the same as or similar to the work performed by Winstead and
Gerardi. Further, Gerardi was a permanent employee throughout
Ramirez’s employment and Winstead completed her probationary period
two months after Ramirez began working for the USAO.
At her deposition, Ramirez testified that Hohle reprimanded
Winstead for leaving the telephone unattended while she had copier
training and for filling out vouchers incorrectly. While there is
some similarity between these allegations and some of deficiencies
noted in Ramirez’s termination letter, they are not “nearly
identical” because Ramirez’s termination letter notes numerous other
deficiencies. Cf. Wallace, 271 F.3d at 221. Ramirez does make a
general allegation that Winstead and Gerardi were “found to have the
same deficiencies in conduct and performance”–-this could suggest
that there were other unspecified deficiencies which would make the
cases more similar–-but general, conclusory, and unsubstantiated
statements do not constitute competent summary judgment evidence.
See Douglass v. United Servs. Auto Ass’n, 79 F.3d 1415, 1429 (5th
Cir. 1996).
Ramirez next attempts to establish pretext by relying on the
testimony of Christina Ybarra, an employee of the USAO, who stated
that the Anglo Litigation Support Specialist hired to replace
Ramirez does not have to perform the secretarial duties that Ramirez
did. The unrebutted evidence produced by the USAO provides a
9 reasonable explanation for this disparity. First, at the time of
Ramirez’s employment, all support staff had to perform some
secretarial duties, not just Ramirez. Second, Ramirez concedes
that a full-time receptionist was hired some time after Ramirez’s
termination, reducing the reception duties for all support staff.
Third, the administrative/secretarial load has been reduced for all
members of the USAO support staff because they no longer have to
perform certain duties, such as preparing jail lists, which were
required while Ramirez was employed there.
Finally, Ramirez raises a potpourri of issues which she alleges
establishes pretext. As evidence of pretext, Ramirez cites to the
facts that (1) there has been no Hispanic lead AUSA while Hohle has
been employed in the Corpus Christi office, (2) the USAO failed to
follow Office of Personnel Management procedures in terminating her,
(3) comments were made that Ramirez dressed elegantly, which she
interprets as suggesting that Hispanics should not be dressed nicely
and (4) Garcia testified that Hohle did not like Hispanics and that
Hohle felt there were certain jobs only white employees could do.
All of these allegations suffer from being conclusory and
unsubstantiated. As such, they do not constitute proper summary
judgment evidence. See Douglass, 79 F.3d at 1429.
Though Ramirez established a prima facie case of race/national
origin discrimination, the USAO provided numerous legitimate, non-
discriminatory reasons for Ramirez’s termination. Ramirez has
provided no evidence which creates an issue of material fact
10 demonstrating that these reasons were a mere pretext for intentional
discrimination. Therefore, Ramirez’s claims for race/national
origin discrimination must fail. We next turn to whether the USAO
violated Title VII by terminating Ramirez in retaliation for
engaging in protected activities.
B. Retaliation
In order to establish a prima facie case of retaliation,
Ramirez must demonstrate that: (1) she engaged in a statutorily
protected activity, (2) she suffered an adverse employment action,
and (3) there was a causal link between the protected activity and
the adverse employment action. Webb v. Cardiothoracic Surgery
Assoc., 139 F.3d 532, 540 (5th Cir. 1998). Undoubtedly, Ramirez
experienced an adverse employment action when she was terminated.
See Burlington N. & Santa Fe Ry. Co. v. White, 126 S. Ct. 2405, 2415
(2006) (defining adverse employment action as an action which would
dissuade “a reasonable worker from making or supporting a charge of
discrimination”). The primary issue on appeal is whether Ramirez
engaged in any protected activities.
Ramirez alleges four instances in which she engaged in a
protected activity, namely: (1) Ramirez’s close association with
Garcia, an employee who filed a EEOC charge of discrimination
against the USAO, (2) her complaint to Gerardi about co-workers
making jokes about another employee’s hostile work environment
claim, (3) her being represented by the Union, which filed a
grievance alleging discrimination, and (4) Hohle’s comments about
11 Ramirez’s association with unions. None of these allegations are
sufficient to establish a prima facie case of retaliation.
Ramirez’s close association with Garcia, who filed an EEOC
complaint before Ramirez joined the office, does not establish that
Ramirez engaged in a protected activity. Filing an EEOC complaint
is clearly a protected activity. See Harvill v. Westward Commc’ns,
L.L.C., 433 F.3d 428, 439 (5th Cir. 2005). We have previously held,
however, that an individual does not have automatic standing to sue
for retaliation simply because a friend or spouse engaged in a
protected activity; rather, the individual herself must have
participated in some manner in the protected conduct. Holt v. JTM
Indus., Inc., 89 F.3d 1224, 1226-27 (5th Cir. 1996) (applying this
holding to an ADEA case, but noting that “the anti-retaliation
provisions of the ADEA and Title VII are similar”). With respect
to her close association with Garcia, Ramirez did not engage in a
protected activity because she has not alleged that she participated
in any manner in Garcia’s complaint.2
2 Ramirez cites to the EEOC website for the proposition that an individual is a “covered individual” for Title VII retaliation through mere association with an individual who engages in a protected activity. http://www.eeoc.gov/types/retaliation.html (last accessed Jan. 2, 2007). The website states: Covered individuals are people who have opposed unlawful practices, participated in proceedings, or requested accommodations related to employment discrimination based on race, color, sex, religion, national origin, age, or disability. Individuals who have a close association with someone who has engaged in such protected activity also are covered individuals. For example, it is illegal to terminate an employee because his spouse participated in employment discrimination litigation.
12 Ramirez’s complaint to Gerardi, who was acting as Office
Manager in Hohle’s absence, that her co-workers were making jokes
about another employee who had filed an EEOC complaint also fails
to establish a prima facie case of retaliation. The district court
correctly concluded that there was no causal link between Ramirez’s
complaint to Gerardi and her termination three months later.3 Fifth
Circuit precedent requires evidence of knowledge of the protected
activity on the part of the decision maker and temporal proximity
between the protected activity and the adverse employment action.
See Swanson v. Gen. Servs. Admin., 110 F.3d 1180, 1188 (5th Cir.
1997). In this case, Hohle, not Gerardi, was the decision maker in
Ramirez’s termination. Ramirez concedes that she does not know if
Hohle ever found out about her complaint to Gerardi. Further, upon
review of Hohle’s deposition testimony, the district court concluded
that there was no testimony from which it could infer that Hohle
knew of the complaint and considered it in her decision to terminate
Ramirez. Without any evidence that Hohle knew of Ramirez’s
Id. This non-binding advisory document aimed at the general public clearly conflicts with Fifth Circuit precedent as articulated in Holt. 89 F.3d at 1226-27 (finding no automatic standing to sue for retaliation simply because a friend or spouse engaged in a protected activity; rather, the individual herself must have participated in some manner in the protected conduct). 3 The USAO objected to the district court that Ramirez’s complaint to Gerardi did not constitute a protected activity. Because we agree with the district court that there is no causal connection between Ramirez’s making the complaint and her termination, we do not decide whether Ramirez’s complaint was a protected activity.
13 complaint when she decided to terminate Ramirez three months later,
Ramirez cannot establish a prima facie case of retaliation.
Ramirez next relies on a Union grievance which complained of
a hostile work environment and discriminatory treatment as well as
allegedly anti-union comments made by Hohle to establish that she
engaged in a protected activity. These allegations raise a matter
which this circuit has never squarely determined, namely, whether
union activities are protected activities under Title VII. We do
not need to determine this issue to resolve the merits of Ramirez’s
appeal. Though the Union did file a grievance which alleged
discrimination and a hostile work environment, this evidence alone
does not demonstrate that Ramirez engaged in a protected activity.
Ramirez would need to show that she participated in some manner in
filing the Union grievance. See Holt, 89 F.3d at 1226-27.
Finally, Ramirez attempts to link anti-union comments made by
Hohle to her termination. To establish that Hohle made anti-union
comments, Ramirez cites to the deposition testimony of Jeanell
Walker, the Union president. Walker recounts a conversation with
Nora Longoria, a legal secretary, in which Longoria recounted how
Hohle told her that she had a problem with Ramirez being part of a
union. The district court correctly ruled that this statement was
hearsay. Ramirez argues that the statements are admissible as non-
hearsay under the party opponent exception to the hearsay rule.
Ramirez’s argument fails because Walker’s testimony is double
hearsay. Under the Federal Rules of Evidence, “[h]earsay within
14 hearsay is not excluded under the hearsay rule if each part of the
combined statements conforms with an exception to the hearsay rule
provided in these rules.” FED. R. EVID. 805. Hohle’s remarks to
Longoria would probably fall within the party opponent exception.
However, Longoria’s comments to Walker do not fall within the party
opponent exception because they concerned matters outside the scope
of her employment, since Longoria was not involved in the decision
to terminate Ramirez. See FED. R. EVID. 801(d)(2)(D) (requiring
statement by a party’s agent or servant to be made within the scope
of employment); see also Breneman v. Kennecott Corp., 799 F.2d 470,
473 (9th Cir. 1986) (finding statements not within scope of
employment when declarants relating what decision maker said were
not involved in the company’s discharge of plaintiff).
Ramirez has failed to establish a prima facie case of
retaliation. Therefore, the district court did not err in granting
summary judgment on Ramirez’s Title VII retaliation claim.
IV. CONCLUSION
For the reasons stated above, we AFFIRM the judgment of the
district court.
AFFIRMED.