Lester Walker v. Timothy Geithner

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UNPUBLISHED OPINION FILED. [10-10191 Affirmed] Judge: WED , Judge: JES , Judge: LHS. Mandate pull date is 12/27/2010 [10-10191]

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Lester Walker v. Timothye: 10-10191 Cas Geithner Document: 00511284520 Page: 1 Date Filed: 11/04/2010 Doc. 0 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED N o . 10-10191 S u m m a r y Calendar November 4, 2010 Lyle W. Cayce Clerk L E S T E R L. WALKER, P la in t if f -A p p e lla n t , versu s T IM O T H Y GEITHNER, Secretary, United States Department of Treasury, D e fe n d a n t -A p p e lle e . A p p e a l from the United States District Court fo r the Northern District of Texas U S D C No. 4:08-CV-317 B e fo r e DAVIS, SMITH, and SOUTHWICK, Circuit Judges. J E R R Y E. SMITH, Circuit Judge:* L e s t e r Walker, pro se, appeals a summary judgment on his racial discrimin a t io n and retaliation claims against his employer. We affirm. 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. * Dockets.Justia.com Case: 10-10191 Document: 00511284520 Page: 2 Date Filed: 11/04/2010 No. 10-10191 I. S in c e June 1995, Walker, who is black, has been a Final Verifier for the D e p a r t m e n t of Treasury, Bureau of Engraving and Printing; from January 1994 t o June 1995, he was a Bureau police officer. In August 2002, he applied for his o ld position as a police officer. Ernest Coleman, Inspector of Police Service B r a n c h , selected applicants to fill the multiple vacancies, and Martha Howe, M a n a g e r of the Security Division, approved the selections. Walker was not sele c te d . In February 2003, Walker met with an Equal Employment Opportunity (" E E O " ) counselor. In August 2003, he applied for a supervisory police officer pos it io n (sergeant). Coleman and two other Bureau employees interviewed applic a n t s , Coleman selected applicants to fill the vacancies, and Howe approved the s e le c t io n s . Walker was not chosen for that position, either. Of those who were h ir e d as police officers, at least one is black; of the three hired as sergeants, one is black and another hispanic. II. W a lk e r filed a charge of discrimination with his EEO representative, and h e a r in g s were held in late 2004 and early 2005. In May 2005, the administrat iv e law judge overseeing the hearing issued a finding of no discrimination, and t h e EEOC denied Walker's appeal and request for reconsideration. Walker sued u n d e r title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and 42 U .S .C . § 1981, alleging discrimination on the basis of race and in retaliation for p r e v io u s EEO activity when he was not selected for either police officer position. III. A summary judgment is reviewed de novo. Bolton v. City of Dallas, 472 2 Case: 10-10191 Document: 00511284520 Page: 3 Date Filed: 11/04/2010 No. 10-10191 F .3 d 261, 263 (5th Cir.2006). We view the evidence in the light most favorable t o the non-moving party, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U .S . 574, 587 (1986), and the movant has the burden of showing that summary ju d g m e n t is appropriate, Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Summary judgment is appropriate if there is no genuine issue of material fact a n d the moving party is entitled to judgment as a matter of law. Anderson v. L ib e r ty Lobby, Inc., 477 U.S. 242, 247 (1986); FED. R. CIV. P. 56(c). Even if there is a dispute regarding some material facts, a movant may obtain summary judgm e n t if he can prove there is no evidence to support one or more essential elem e n ts of the non-moving party's claim. Celotex, 477 U.S. at 323-25. Once the m o v in g party has carried its burden, the non-movant must come forward with " s p e c ific facts" showing a genuine factual issue for trial. Matsushita, 475 U.S. a t 587. Conclusional allegations and denials, speculation, and unsupported ass e r t io n s are insufficient to avoid summary judgment. SEC v. Recile, 10 F.3d 1 0 9 3 , 1097 (5th Cir. 1993).1 A. A b s e n t direct evidence, we analyze claims of racial discrimination under t h e burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 7 9 2 (1973). The burden is on the plaintiff to make out a prima facie case of rac ia l discrimination, id. at 802, by showing (1) he belongs to a protected class; (2 ) he applied and was qualified for the job sought; (3) despite his qualifications, h e was rejected; and (4) after his rejection, the position was filled by someone not in the protected class, Oden v. Oktibbeha Cnty., Miss., 246 F.3d 458, 468 (5th C ir . 2001). If the plaintiff can establish a prima facie case, the burden shifts to Because the same facts underlie Walker's discrimination claims under title VII and § 1981, and both statutes require the same burden of proof, we analyze the claims together. See Roberson v. Alltel Info. Servs., 373 F.3d 647, 651 (5th Cir. 2004). 1 3 Case: 10-10191 Document: 00511284520 Page: 4 Date Filed: 11/04/2010 No. 10-10191 t h e employer to articulate a legitimate, nondiscriminatory reason for the adverse e m p lo y m e n t action. McDonnell Douglas, 411 U.S. at 802. If the employer meets t h a t burden, the burden shifts to the plaintiff to prove that the proffered reason is not true, but rather a pretext for the real discriminatory purpose. McCoy v. C ity of Shreveport, 492 F.3d 551, 557 (5th Cir. 2007). Walker's prima facie case is weak, because other blacks were hired for b o th positions.2 But, even assuming that Walker met his burden, the employer h a s articulated legitimate, non-discriminatory reasons for his non-selection for b o th positions. As for the police officer position, Walker's previous supervisor t o ld Howe that Walker "wasn't a good choice for the security division" because h e often "tested the limits" of employment policies. As an example, the superv is o r said that Walker had wanted to "find out just exactly how much time he [c o u ld ] get off for [donating] blood and that kind of stuff." Because of those comm e n ts , Howe did not approve Coleman's selection of Walker. As for the sergeant p o s it io n , Walker's employer asserts that he was not as qualified as the other app l i c a n t s .3 Walker has not pointed to any evidence showing that those reasons w e r e pretext for race discrimination, so the employer was entitled to summary ju d g m e n t. 2 Two of the three sergeants hired were minorities. At the time he interviewed, Walker had 1½ years' experience as a Bureau police officer, with no supervisory police experience, and had been away from law enforcement for over eight years. The other three applicants, all of whom were hired, had much more experience: Thomas was a Bureau officer when he applied, with over 11 years in that position and 9 years' supervisory experience in the Air Force; Cartagena was also a current Bureau officer with 6 years in that position, plus experience as a temporary sergeant, and 2 years as a police officer with the Veterans Administration and 18 years' supervisory police experience with the Air Force; Barnes had over 10 years as a Bureau officer, including more than 7 years as a Bureau sergeant. 3 4 Case: 10-10191 Document: 00511284520 Page: 5 Date Filed: 11/04/2010 No. 10-10191 B. W e analyze retaliation claims using the same McDonnell Douglas framew o r k . Medina v. Ramsey Steel Co., 238 F.3d 674, 684 (5th Cir. 2001). To establis h a prima facie case of unlawful retaliation, a plaintiff must demonstrate (1 ) he engaged in a protected activity; (2) he suffered an adverse employment dec is io n ; and (3) a causal link exists between the protected activity and the adverse d e c is io n . Id. A "causal link" arises where "the employer's decision to terminate w a s based in part on knowledge of the employee's protected activity." Sherrod v . Am. Airlines, Inc., 132 F.3d 1112, 1122 (5th Cir. 1998). W a lk e r cannot establish a prima facie case of retaliation, because there is n o evidence that his employers were aware of his protected activity, so there is no causal link. Walker claims that he was involved in protected EEO activity in 1 9 9 7 and from 2000 to 2002. First, the 1997 EEO complaint is irrelevant, bec a u s e the complaint was against Walker and other employees. Second, although W a lk e r asserts that from 2000 to 2002 he supported another employee in filing a n d litigating an EEO complaint, he defends that assertion with nothing but con clu sion a l statements, which are insufficient to withstand summary judgment. Further, both Coleman and Howe denied knowing that Walker had engaged in a n y EEO activity before he applied for the police officer position. The evidence shows that Walker first engaged in protected activity in 2 0 0 3 , after he applied for the police officer position but before he applied for serg e a n t . There is no evidence, however, to link that activity to his non-selection fo r sergeant. Coleman, the initial decisionmaker, was unaware of Walker's disc u s s io n s with the EEO counselor in 2003, and Walker has produced no summary ju d g m e n t evidence to the contrary. Because there is no genuine dispute of mater ia l fact, defendant was entitled to summary judgment. A F F IR M E D . 5

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