Annie Mzyk v. North East Indep Sch Dist

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UNPUBLISHED OPINION FILED. [10-50037 Affirmed ] Judge: WED , Judge: JES , Judge: LHS Mandate pull date is 10/21/2010 [10-50037]

Annie Mzyk v. North East Indep Sch Dist

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Case: 10-50037

Document: 00511249788

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Date Filed: 09/30/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
September 30, 2010 N o . 10-50037 S u m m a r y Calendar Lyle W. Cayce Clerk

A N N I E L. MZYK, P la in t if f -A p p e lla n t v. N O R T H EAST INDEPENDENT SCHOOL DISTRICT, 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 for the Western District of Texas N o . 5:08-CV-00344

B e fo r e DAVIS, SMITH, and SOUTHWICK, Circuit Judges. P E R CURIAM:* P la in t iff-A p p e lla n t Annie L. Mzyk appeals the district court's entry of s u m m a r y judgment dismissing all of Mzyk's claims against her employer. For t h e reasons stated herein, we affirm the district court's judgment. I. M z y k filed pro se various discrimination claims against her employer, D e fe n d a n t -A p p e lle e North East Independent School District ("NEISD"), in the

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

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No. 10-50037 d is t r ic t court. Specifically, she has raised claims pursuant to Title VII of the C iv il Rights Act of 1964, 42 U.S.C. §§2000e, et seq. ("Title VII") for d is c r im in a t io n based on her national origin (Polish American), a hostile work e n v ir o n m e n t , and retaliation; claims pursuant to the Age Discrimination in E m p lo y m e n t Act, 29 U.S.C. §§ 621, et seq. ("ADEA"), for age discrimination and r e t a lia tio n ; and claims pursuant to the Americans with Disabilities Act, 42 U .S .C . §§ 12102, et seq. ("ADA") for disability discrimination, failure to a c c o m m o d a te , and retaliation. M z y k is employed as an administrative assistant by NEISD. Construing h e r pro se complaint and other documents in the record in a favorable light, M z y k generally asserts the following facts: that NEISD refused her repeated r e q u e s t s to increase the pay grade of her position to compensate her for in c r e a s e s in duties and work load ­ primarily the responsibility given to her for a n s w e r in g the NEISD main telephone line ­ which is purportedly inconsistent w ith NEISD's treatment of other similarly situated employees who have received p a y increases and reduced work loads; that such actions are allegedly due to her P o lis h national origin and her age, as well as retaliation for previous charges of d is c r im in a t io n ; and that NEISD has allegedly refused to accommodate her r e q u e s ts for changes in work duties that she has made due to her various p h y s ic a l ailments. As relief, Mzyk seeks back wages and benefits, various kinds o f injunctive relief related to the distribution of her work duties, other c o m p e n s a to r y damages, and litigation costs and fees. T h e district court assigned all pre-trial proceedings to a magistrate judge, in c lu d in g NEISD's motion for summary judgment. The magistrate judge issued a report to the district court recommending that all of Mzyk's claims should be d is m is s e d upon NEISD's motion for summary judgment (the "Report"). The m a g is tr a t e judge noted that subsequent to filing her complaint, Mzyk expressly w a i v e d her Title VII claims of national origin discrimination and hostile work 2

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No. 10-50037 e n v ir o n m e n t , while choosing to maintain her other claims: (1) ADEA d is c r im in a t io n and retaliation; (2) ADA discrimination, failure to accommodate, a n d retaliation; and (3) Title VII retaliation. Reciting the undisputed facts, the magistrate judge determined that Mzyk fa ile d to prove two elements of her prima facie age discrimination claim under A D E A : (1) that she suffered an adverse employment action; and (2) that others s im ila r ly situated but outside the protected group received more favorable t r e a t m e n t .1 The magistrate judge concluded that Plaintiff had not stated an a d v e r s e employment action because she had simply alleged that the salary level fo r the administrative assistant position that she held was inadequate and d is c r im in a t o r y . She did not allege that failure to increase her pay as compared t o other employees who held the same position was discriminatory.2 The

m a g is tr a t e judge determined that Plaintiff failed to prove the second prima facie e le m e n t of her age discrimination claim, noted above, because she failed to p r o v id e any competent summary judgment evidence that other employees with w h o m she compared herself were truly comparable. See Lee v. Kansas City S. R y . Co., 574 F.3d 253, 260 (5th Cir. 2009) ("[A]n employee who proffers a fellow e m p lo y e e as a comparator" must "demonstrate that the employment actions at is s u e were taken under nearly identical circumstances.") (internal quotation m a r k s omitted).

The Report recites the prima facie requirements for an age discrimination claim based on disparate treatment that the magistrate judge applied. The Plaintiff was required to show: (1) that she belongs to a protected group of persons over the age of forty; (2) that she was qualified for the position; (3) that she suffered an adverse employment action; and (4) that others similarly situated but outside the protected group received more favorable treatment. See Willis v. Coca Cola Enters., Inc., 445 F.3d 413, 420 (5th Cir. 2006); Rutherford v. Harris County Tex., 197 F.3d 173, 184 (5th Cir. 1999). Mzyk does not deny having received annual within-pay-grade increases or an actual pay-grade increase in July 2008.
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No. 10-50037 W it h regard to Mzyk's claims under the ADA (disparate treatment and f a i l u r e to accommodate), the magistrate judge determined on the basis of the u n d is p u t e d facts that Plaintiff could not meet the prima facie requirements for e it h e r ADA claim because she presented no evidence that she suffered from a " d is a b ilit y ," as defined by the ADA.3 Relying on the testimony of Mzyk's doctor, t h e magistrate judge noted that the physician had diagnosed Plaintiff with v a r i o u s physical ailments and with stress, but not with any condition s u b s t a n t ia lly impairing one or more of her major life activities, as generally r e q u ir e d to meet the ADA's definition of "disability." See Pryor v. Trane Co., 138 F .3 d 1024, 1026 (5th Cir. 1998) ("Temporary, non-chronic impairments of short d u r a t io n , with little or no longer term or permanent impact, are usually not d is a b ilit ie s ."); Dupre v. Charter Behavioral Health Sys. of Lafayette, Inc., 242 F .3 d 610, 614 (5th Cir. 2001) ("[N]ot all impairments are serious enough to be c o n s id e r e d disabilities under the statute.")). The magistrate judge concluded t h a t Plaintiff had presented no evidence from which a reasonable jury could c o n c lu d e that she had a disability under the ADA definition. Finally, regarding Plaintiff's retaliation claims under ADEA and ADA,4 the m a g is tr a t e judge concluded on the basis of the undisputed facts that, even

The magistrate judge recited the prima facie elements that she applied to Plaintiff's ADA claims. To establish a prima facie case of disparate treatment due to disability, Plaintiff was required to show: (1) she is disabled; (2) she was nonetheless qualified to do the job; (3) an adverse employment action was taken against her; and (4) she was replaced by or treated less favorably than non-disabled employees. See Aldrup v. Caldera, 274 F.3d 282, 286 (5th Cir. 2001); McInnis v. Alamo Cmty. Coll. Dist., 207 F.3d 276, 279-80 (5th Cir. 2000). To establish a prima facie case of discrimination based on failure to accommodate a disability, Plaintiff was required to show: (1) the employer is covered by the statute; (2) she is an individual with a disability; (3) she can perform the essential functions of the job with or without reasonable accommodation; and (4) the employer had notice of the disability and failed to provide accommodation. See, e.g., Bridges v. Dep't of Soc. Serv., 2001 WL 502797, *1 (5th Cir. Apr. 27, 2001) (citing Lyons v. Legal Aid Soc'y, 68 F.3d 1512, 1515 (2d Cir. 1995)). The magistrate judge determined that Mzyk abandoned her Title VII retaliation claim by failing to present evidence in support thereof.
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No. 10-50037 a s s u m in g Plaintiff had established prima facie retaliation claims, she failed to p r o v id e evidence sufficient to raise a genuine issue of material fact regarding the c a u s a t io n element of the retaliation claims. Specifically, the magistrate judge d e t e r m in e d that Mzyk did not present evidence capable of showing that NEISD m a d e any employment decisions concerning her that would not have been made " b u t for" her protected activity, as required to sustain such claims. See, e.g., S e p tim u s v. Univ. of Houston, 399 F.3d 601, 608 (5th Cir. 2005). T h e district court reviewed the magistrate judge's Report and conducted a n independent review of the entire record and a de novo review of those matters in the Report to which the Plaintiff objected.5 The district court then accepted t h e magistrate judge's recommendations in its Order Accepting Report and R e c o m m e n d a tio n of the United States Magistrate Judge, dated December 10, 2 0 0 9 , thereby dismissing all of Plaintiff's claims on summary judgment. II. T h is court reviews the district court's grant of summary judgment de novo, a p p l y in g the same legal standard as the district court. Turner v. Baylor

R ic h a r d s o n Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007). Summary judgment is a p p r o p r ia te when the record reveals that "there is no genuine issue as to any m a t e r ia l fact and that the movant is entitled to summary judgment as a matter o f law." FED. R. CIV. P. 56(c)(2). In making this determination, the court

c o n s id e r s the facts and the inferences to be drawn from them in the light most fa v o r a b le to the nonmoving party. Turner, 476 F.3d at 343 (citing Wyatt v. Hunt P ly w o o d Co., Inc., 297 F.3d 405, 408 (5th Cir. 2002)). But a nonmoving party " c a n n o t defeat summary judgment with conclusory allegations, unsubstantiated a s s e r t io n s , or `only a scintilla of evidence.'" Turner, 476 F.3d at 343 (quoting L ittle v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc)).
Plaintiff filed objections to various elements of the Report's recitations of fact and conclusions of law.
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III. I n seeking to challenge the district court's grant of summary judgment on t h is pro se appeal, the Appellant makes no more than conclusory allegations and assertions. See Plaintiff-Appellant's Brief at 13-17. In her brief, Appellant does n o t raise any material doubts about the legal or factual accuracy of the m a g is tr a t e judge's Report. After reviewing the record and considering the

b r ie fin g of the parties, we conclude that the magistrate judge and the district c o u r t correctly read the record and applied the correct legal standards with r e s p e c t to all of Mzyk's claims. ju d g m e n t. Accordingly, we affirm the district court's

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