Janice Nathaniel v. MS Department of Wildlife

Filing

UNPUBLISHED OPINION FILED. [10-60552 Affirmed] Judge: PEH , Judge: JES , Judge: CH. Mandate pull date is 01/18/2011 [10-60552]

Janice Nathaniel v. MS se: 10-60552 Document: 00511332964 CaDepartment of Wildlife

Page: 1 Date Filed: 12/27/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
December 27, 2010 N o . 10-60552 S u m m a r y Calendar Lyle W. Cayce Clerk

J A N I C E D. NATHANIEL, P la in t if f -A p p e lla n t v. M I S S I S S I P P I DEPARTMENT OF WILDLIFE, FISHERIES AND PARKS, 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 Southern District of Mississippi U S D C No. 3:07-CV-549

Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges. P E R CURIAM:* A p p e lla n t Janice D. Nathaniel ("Nathaniel") appeals the district court's ord er granting the Mississippi Department of Wildlife, Fisheries and Parks' (the " D e p a r t m e n t" ) motion for summary judgment and dismissing Nathaniel's sex d is c r im in a t io n , unlawful retaliation, and intentional infliction of emotional

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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

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No. 10-60552 d is t r e s s claims.1 The district court concluded that Nathaniel failed to create a f a c t issue as to whether the defendant's reasons for not promoting Nathaniel w e r e pretextual and failed to set forth evidence to support a prima facie case for r e t a lia tio n . Nathaniel raises three issues on appeal: (1) whether the district c o u r t's opinion was based on a fundamental error of fact; (2) whether a genuine is s u e of material fact existed as to the Department's proffered reasons for not p r o m o t in g Nathaniel; and (3) whether the district court erred in granting s u m m a r y judgment to the Department on Nathaniel's retaliation claim. We c o n c lu d e that the district court did not err in granting the Department's motion fo r summary judgment and in dismissing Nathaniel's claims, and, therefore, we A F F IR M . I . FACTUAL BACKGROUND AND PROCEDURAL HISTORY N a t h a n ie l began working for the Department on July 1, 2003, as a Park W o r k e r I. Nathaniel's duties consisted of collecting fees at a ranger station. She in q u ir e d several times about opportunities for advancement and sought to be p r o m o t e d to the position of Park Worker II, but she did not obtain a promotion. At the time she filed this lawsuit, Nathaniel was still employed by the D e p a r t m e n t in the position of Park Worker I. I n 2005, the Department hired Craig Belton ("Belton") as a part-time e m p lo y e e . In 2006, Belton indicated that he was interested in a full-time

p o s it io n and was promoted from his part-time position to a full-time Park W o r k e r II position. N a t h a n ie l filed a sex discrimination charge with the Equal Employment O p p o r t u n it y Commission ("EEOC") in January 2007, claiming that she was d is c r im in a t e d against because she "had been employed longer, [she and Belton] p e r fo r m the same duties, and [she] can work any time, but [Belton] cannot
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Nathaniel did not appeal the dismissal of her intentional infliction of emotional distress claim, and this opinion does not address it.

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No. 10-60552 b e c a u s e of his (8-5:00) primary job." The EEOC issued Nathaniel a right to sue le t t e r on May 21, 2007. N a t h a n ie l filed suit on August 17, 2007 in Mississippi state court claiming t h a t the Department violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000 et seq. ("Title VII"), by unlawfully discriminating against her based on sex a n d unlawfully retaliating against her for bringing a sex discrimination claim. Nathaniel claimed that in December 2006, the Department retaliated against h e r by no longer allowing her to work in the office.2 Otherwise, she stated that s h e retained the same job duties. Her complaint also included a claim for in t e n t io n a l infliction of emotional distress and punitive damages. The

D e p a r t m e n t removed the lawsuit to the United States District Court for the S o u th e r n District of Mississippi on September 18, 2007. A fte r the parties conducted discovery, the Department moved for summary ju d g m e n t , which the district court granted, entering a final judgment on May 25, 2 0 1 0 . Nathaniel timely appealed. I I . STANDARD OF REVIEW AND JURISDICTION W e review a grant of summary judgment de novo, applying the same s t a n d a r d as the district court. Gen. Universal Sys., Inc. v. HAL Inc., 500 F.3d 4 4 4 , 448 (5th Cir. 2007). Summary judgment is appropriate if the moving party c a n show that "there is no genuine dispute as to any material fact and the m o v a n t is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a).3 The e v id e n c e must be viewed in the light most favorable to the non-moving party.

Nathaniel contends that "As of December the 6th, I wasn't allowed to work back down in the office anymore." She does not explain how the failure to work in the office impacted her other duties or how the office duties were superior to any duties she retained. Effective December 1, 2010, Federal Rule of Civil Procedure 56 has been amended, and the summary judgment standard is now reflected in Rule 56(a). The amended Rule 56 contains no substantive change to the summary judgment standard. Therefore, we cite to the amended rule.
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No. 10-60552 T I G Specialty Ins. Co. v. Pinkmonkey.com, Inc., 375 F.3d 365, 369 (5th Cir. 2 0 0 4 ). I I I . DISCUSSION A. W h e t h e r the district court's opinion was based on a fundamental error of fa c t. N a t h a n ie l contends that the district court erred in finding that Belton w o r k e d for the same employer for nine years because his previous e m p lo y e r -- S M M H -- w a s not a state agency. We conclude that Nathaniel's first p o in t of error is meritless. The district court found that the fact that Belton had a longer history of working for a single employer was a legitimate, nond is c r im in a t o r y reason for hiring Belton. Belton's longest period of employment w it h a single employer was nine years, as opposed to Nathaniel's longest period o f employment with one employer, which was three years. The district court's d e c is io n to conclude that the Department's proffered reason constituted a nond is c r im in a t o r y reason was not a "fundamental error of fact." The Department r e lie d on the longevity of prior employment in making its decision, and the d is t r ic t court properly concluded that it should not substitute its own judgment fo r that of the Department's when "evaluating what types of experience are most v a lu a b le for an employee . . . in the absence of proof that the standards were not c o n s is t e n t ly applied or were so irrational or idiosyncratic as to suggest a coveru p ." EEOC v. La. Office of Cmty. Servs., 47 F.3d 1438, 1446 (5th Cir. 1995). We fin d it irrelevant whether Belton's prior employment was with a state agency or w it h a private entity and reject Nathaniel's first point of error. B. W h e t h e r a genuine issue of material fact existed as to the Department's p r o ffe r e d reasons for not promoting Nathaniel. N a t h a n ie l next argues that the district court erred in giving conclusive w e ig h t to the Department's proffered reasons for hiring Belton rather than N a th a n ie l, and that the court should have considered whether the Department's

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No. 10-60552 r e a s o n s were pretextual. The district court held that Nathaniel set forth a p r im a facie case for sex discrimination. According to the burden-shifting

fr a m e w o r k of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), once the p la in t iff meets her burden of establishing a prima facie case, the burden shifts t o the defendant to provide a legitimate, non-discriminatory reason for the d e c is i o n . Id. at 802. If the defendant does so, as the Department did in this c a s e , the burden then shifts back to the plaintiff to show that the defendant's p r o ffe r e d reason is a pretext for unlawful discrimination. Id. at 804. Here, the D e p a r t m e n t offered the following reasons for promoting Belton over Nathaniel: his longer history of stable work discussed above, the fact that he had a college d e g r e e and Nathaniel did not, and a legislative directive to move part-time e m p lo y e e s into full-time positions. See Miss. State Bd. Policy & Procedures M a n u a l, § 4.21.10 (Rev. Apr. 2004). Nathaniel relies on Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 1 3 3 (2000), in which the Supreme Court held that "a plaintiff's prima facie case . . . , combined with sufficient evidence for a reasonable factfinder to reject the em p loy er's nondiscriminatory explanation for its decision, is adequate to sustain a finding of liability for intentional discrimination." Id. at 140, 147-49.

Nathaniel's reliance on Reeves is misplaced. In Reeves, the plaintiff offered s u b s t a n t ia l evidence to discredit the defendant's proffered reason for firing the p la in t iff. Id. at 151-53. Unlike Reeves, Nathaniel did not offer any evidence to d is c r e d it the Department's assertion that it hired Belton rather than Nathaniel b e c a u s e of a legislative directive, the fact that Belton had a college degree, and t h e fact that Belton had a more stable work history. O n appeal, Nathaniel argues that the Department failed to explain "why [it ] could not meet this [legislative] directive by promoting [Nathaniel] to the p o s it io n of Park Worker II and offering the full-time position of Park Worker I t o Mr. Belton . . . ." Nathaniel's argument, however, ignores the fact that the 5

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No. 10-60552 D e p a r t m e n t was only required to provide a "legitimate, non-discriminatory r e a s o n " for not hiring Nathaniel; it was not required to persuade the court that " it had convincing, objective reasons for preferring the chosen applicant above t h e plaintiff." Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256-57 (1981) (h o ld in g that "[t]he Court of Appeals . . . misconstrued the nature of the burden [o f] McDonnell Douglas and its progeny" by placing "on the defendant the burden o f persuading the court that it had convincing, objective reasons for preferring t h e chosen applicant above the plaintiff"). Instead, the "burden on the employer is only one of production, not persuasion, involving no credibility assessments." Russell v. McKinney Hosp. Venture, 235 F.3d 219, 222 (5th Cir. 2000). The D e p a r t m e n t offered three legitimate, non-discriminatory reasons for hiring B e lt o n , and Nathaniel failed to rebut these reasons. Therefore, we hold that the d is t r ic t court properly concluded that Nathaniel failed to raise any issue of m a t e r ia l fact indicating that the Department's proffered reasons were p r e te x tu a l. C. W h e t h e r the district court erred in granting summary judgment to the D e p a r tm e n t on Nathaniel's retaliation claim. F in a lly , Nathaniel asserts that the district court erred in failing to find t h a t a genuine issue of material fact existed with respect to Nathaniel's r e t a lia tio n claim. Rule 56 makes clear that if, after a party has adequate time fo r discovery, it fails to provide evidence on one element of its prima facie case, " t h e r e can be `no genuine issue as to any material fact,' since a complete failure o f proof concerning an essential element of the nonmoving party's case n e c e ssa r ily renders all other facts immaterial." Celotex Corp. v. Catrett, 477 U.S. 3 1 7 , 322-23 (1986). We conclude that the district court properly granted

s u m m a r y judgment to the Department on Nathaniel's retaliation claim because N a th a n ie l failed to provide evidence to support several elements of her prima fa c ie case.

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No. 10-60552 T o establish a prima facie case for unlawful retaliation under Title VII, N a th a n ie l must show that: "(1) she engaged in protected activity; (2) an adverse e m p lo y m e n t action occurred; and (3) a causal link exists between the protected a c t iv it y and the adverse employment action." Turner v. Baylor Richardson Med. C tr ., 476 F.3d 337, 348 (5th Cir. 2007). Nathaniel proved the first element, b e c a u s e bringing a sex discrimination claim is a protected activity. See 42 U.S.C. § 2000e-3(a); Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53, 63 (2006). However, Nathaniel failed to offer sufficient evidence as to the second and third e le m e n t s of her prima facie case. F ir s t , Nathaniel offered no evidence that not being allowed to work in the o ffic e after December 2006 constituted an adverse employment action. She has n o t explained what "working in the office" means and how it differs from a n y t h in g else she still does. While it is true that a lateral reassignment may be a c t io n a b le , it is not automatically so. White, 548 U.S. at 71. The plaintiff must d e m o n s t r a t e that "a reasonable employee would have found the challenged a c t i o n materially adverse, which in this context means it might well have d is s u a d e d a reasonable worker from making or supporting a charge of d is c r im in a t io n ." Id. at 68 (internal quotations omitted). Instead, in her

d e p o s it io n , Nathaniel testified that she held the same position--fee collector at t h e ranger station--that she had when she started working for the Department. Therefore, Nathaniel's argument on this point fails, because she failed to offer a n y evidence to show that the Department's decision not to allow her to work in t h e office was a materially adverse action.4

Additionally, the directive not to work in the office came before the event for which the retaliation allegedly occurred. The directive was December 6, while her claim of discrimination was not made until the following month. Her "mistaken perception" argument, see Fogleman v. Mercy Hospital, Inc., 283 F.3d 561 (3d Cir. 2002), based on an alleged hearsay statement about "going to the Governor" made at an unknown time does not serve to resurrect this claim.

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No. 10-60552 I V . CONCLUSION T h e district court's judgment dismissing Nathaniel's claims is therefore A F F IR M E D .

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