                                                                United States Court of Appeals
                                                                         Fifth Circuit
                                                                      F I L E D
                    UNITED STATES COURT OF APPEALS
                                                                        March 13, 2006
                         FOR THE FIFTH CIRCUIT
                                                                  Charles R. Fulbruge III
                                                                          Clerk


                                  05-10543
                              Summary Calendar




     ENDIA HARRIS-CHILDS,

                                              Plaintiff-Appellant,

                                    v.

     MEDCO HEALTH SOLUTIONS INC.;
     MEDCO HEALTH SOLUTIONS OF TEXAS LLC;
     MERCK-MEDCO RX SERVICES OF TEXAS LLC;
     MERCK AND COMPANY, INC.,

                                              Defendants-Appellees.



         Appeal from the United States District Court for the
                      Northern District of Texas
                              4:03-CV-77



Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

     This appeal is from a district court's grant of summary

judgment    in   favor   of   an   employer     in   a   race     and     gender

discrimination case. Finding no genuine issue of material fact, we

AFFIRM the grant of summary judgment.


     *
       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this opinion should not be published and is not precedent except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.
     I.      BACKGROUND

     Endia    Harris-Childs       (“Appellant”)     was    hired     as   a   staff

pharmacist by Medco Health Solutions, Inc., Medco Health Solutions

of Texas, LLC, and Merck & Company (“Appellees”) in 1988, at their

Fort Worth facility.        Appellees operate a home delivery service

pharmacy.    Appellant became a customer service research pharmacist

in 1995.    In July of 2001, Appellant was the first customer service

research     pharmacist      to    attend    computer-based          prescription

completion protocols (“OC” or “Qrx”) and to rotate shifts at the

OC/QRx department.         In August, Appellant received an award for

outstanding     customer    service.        However,      by   the   next     month

Appellant’s performance was at or near the bottom of all the

pharmacists in the OC/QRx department.

     Subsequently,    Appellant        received    warnings     indicating      her

unacceptable     performance      in   timely     processing     prescriptions.

Additionally, Cindy Wood, an OC/QRx supervisor, met with Appellant

on several occasions in an attempt to assist her in reaching the

performance goal.     Appellant complained to Wood that she was the

only customer research pharmacist to rotate for two-hour shifts to

the OC/QRx department.

     In January, Appellant began a leave of absence.                 On February

7, Wood informed Appellant that she wanted to meet to discuss

Appellant’s performance.          During this meeting, Appellant stated

that she had been advised by her “legal team” not to attend

meetings without their presence.            After refusing to discuss her

                                        2
work performance, Appellant was sent home.                  Appellees’ human

resources department called Appellant and instructed her to come to

the facility on February 11. Appellant and her husband arrived and

two union representatives asked to meet with her in a conference

room. One representative informed her that if she did not agree to

meet with management she would be terminated.           Appellant testified

that she returned to the front lobby and waited for management to

contact her.     She did not recall how long she waited that morning.

She did not notify any Medco employee or the receptionist’s desk

that she had been waiting to speak with management and was going to

leave.     She    testified   that   because   no    one    acknowledged    her

presence, she went home with her husband.           Subsequently, Appellant

received a letter informing her that she had been terminated for

her “persistent refusal to meet with management to discuss your

work performance [which] constitutes gross misconduct and [for]

leaving work today without authorization from the Company [which]

constitutes an abandonment of your position.”

     Appellant thereafter filed a charge of discrimination with the

EEOC, which did not find a violation and issued a Right to Sue

letter. Appellant filed the instant lawsuit, alleging, inter alia,

claims for:      (1) racial and gender discrimination in violation of

Title VII; (2) racial discrimination in violation of 42 U.S.C. §

1981;    (3)   racial   harassment   in   violation    of    Title   VII;   (4)

retaliation in violation of Title VII.         The district court granted



                                      3
summary judgment on all claims.         This appeal followed.

     II.    STANDARD OF REVIEW

     This    Court   reviews    a   district   court’s   grant   of   summary

judgment de novo, applying the same standards as the district

court.     E.g., Hirras v. Nat’l R.R. Passenger Corp., 95 F.3d 396,

399 (5th Cir. 1996).      Summary judgment is proper if the record

reflects “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.” FED. R. CIV. P. 56(c). Fact questions must be considered with

deference to the nonmovant. Herrera v. Millsap, 862 F.2d 1157, 1159

(5th Cir. 1989).      Thus, if a fact question is dispositive of a

motion for summary judgment, "we must review the facts drawing all

inferences most favorable to the party opposing the motion.” Id.

(citation and internal quotation marks omitted).          Questions of law

are reviewed de novo.     Id.

     III. ANALYSIS

            A.   Discrimination

     To establish discrimination, a plaintiff must show: "(1) that

he is a member of a protected group; (2) that he was qualified for

the position held; (3) that he was discharged from the position;

and (4) that he was replaced by someone outside of the protected

group.” Byers v. Dallas Morning News, Inc., 209 F.3d 419, 426 (5th

Cir. 2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506

(1993).


                                       4
      The district court analyzed Appellant’s discrimination claim

under the tripartite burden-shifting test established by McDonnell

Douglas v. Green, 411 U.S. 792, 802–04 (1973).               Under this familiar

framework, the plaintiff bears the burden of establishing a prima

facie case of discrimination; upon such a showing, the burden

shifts    to   the    defendant(s)        to   articulate        some    legitimate,

non-discriminatory reason for the challenged employment action;

once articulated, then the burden shifts back to the plaintiff to

demonstrate that the articulated reason was merely a pretext to

unlawful discrimination.            See McDonnell Douglas, 411 U.S. at

802-04.

      Appellant      argues   for   the    first    time    on   appeal    that   her

employer had mixed motives for terminating her.                  Thus, she argues,

the district court erred in using the McDonnell Douglas framework.

Relying on Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003), she

argues that    the district court should have analyzed her case under

the modified McDonnell Douglas framework.                  By failing to present

her   mixed-motives     claim   to    the      district    court    in    the   first

instance, Appellant has waived it.                 E.g., Ramirez Rodriguez v.

Boehringer Ingelheim, 425 F.3d 67, 78 n.12 (1st Cir. 2005); Mailly

v. Park Place Entertainment Corp., 114 Fed. Appx. 602, 603 (5th

Cir. Sept. 28, 2004) (unpublished).

      Appellant next argues that the district court erred in finding

no genuine issue of fact with respect to her discrimination claim.


                                          5
The district court found that Appellant had demonstrated a prima

facie case of discrimination because she: is an African-American

female;   was   qualified      for    her       position;   was   terminated,    and

apparently replaced by a white male.                The district court further

found that Appellees’ reason for terminating Appellant (refusal to

meet with management to discuss work performance and leaving work

without authorization) was a legitimate non-discriminatory reason.

“The failure of a subordinate to follow a direct order of a

supervisor is a legitimate nondiscriminatory reason for taking

adverse employment action.”           Aldrup v. Caldera, 274 F.3d 282, 286

(5th Cir. 2001).

      Appellant      argues    that     the      district   court   had     to   make

credibility findings because it believed that Appellant refused to

participate     in    the     meeting    with      management.        Contrary    to

Appellant’s argument, there was no need for the district court to

make a credibility finding.           Appellant’s deposition testimony was

sufficient to show that she refused to discuss her work performance

in the meeting. Appellant’s testimony also makes clear that, after

being warned that she would be terminated if she did not meet with

management, she waited an unspecified period of time in the lobby

and   left   without    notifying       anyone      or   attempting    to   contact

management.     We agree with the district court that Appellant has

failed to demonstrate a genuine issue of material fact with respect




                                            6
to Appellee’s reason for termination.2

          B.     Retaliation

     Appellant next argues that the district court erroneously

granted summary judgment with respect to her retaliation claim.

More specifically, she contends that there is a genuine issue of

material fact    as   to   whether   she   participated   in   a   protected

activity under Title VII.      To demonstrate a claim for retaliation,

Appellant must prove:      (1) that she engaged in an activity that was

protected; (2) an adverse employment action occurred; and (3) a

causal connection existed between the participation in the activity

and the adverse employment action.         Webb v. Cardiothoracic Surgery

Assoc., 139 F.3d 532, 540 (5th Cir. 1998).        We are concerned solely

with ultimate employment decisions.         Id.

     Here, the district court found that “there is no evidence that

[Appellant], when she made her complaints to management, ever

mentioned that she felt she was being treated unfairly due to her

race or sex.    In fact, in her deposition, [Appellant] admits that

she never mentioned her race or sex when she made her complaints.”

(emphasis in original).      Accordingly, the district court held that

Appellant failed to demonstrate that she engaged in a protected



     2
         Appellant also argues that there is a fact issue with
respect to whether (1) she violated company policy as it is set
forth in Appellees’ handbook and (2) the union was Appellant’s sole
legal representative. Because we find that these are not material
facts, Appellant cannot show the district court erred in granting
summary judgment.

                                     7
activity under Title VII.

     We agree.    In her appellate brief, Appellant does not allege

that she specifically complained of racial or sexual harassment,

only harassment. Appellant believes the term “harassment” connotes

either   sexual   or    racial    harassment    and,   in   support     of   this

proposition, cites Nash v. Electrospace Systems, Inc., 9 F.3d 401

(5th Cir. 1993).       Nash is inapposite.      Nash recognizes that while

“sexually hostile or abusive work environments are no longer to be

tolerated under Title VII, that fact does not transform Title                 VII

into a strict liability statute for employers.               An employer is

liable only if it knew or should have known of the employee's

offensive conduct and did not take steps to repudiate that conduct

and eliminate the hostile environment.”           Id. at 404.

     Although we are mindful that we review the summary judgment

record in the light most favorable to Appellant, we do not believe

Appellant’s     deposition       testimony     shoulders    her    burden      of

demonstrating     that     she     complained     of   racial      or    sexual

discrimination     to    her     employer.      Although     her   deposition

demonstrates she complained of unfair treatment—such as other

customer service research pharmacists were not required to rotate

out to the QRX department—she has not demonstrated that she put the

employer on notice that her complaint was based on racial or sexual

discrimination. Because she has failed to show that she engaged in

a protected activity under Title VII, she cannot show retaliation.


                                       8
The district court properly granted summary judgment on this claim.

              C.       Hostile Work Environment

         Finally, Appellant argues that the district court erred in

granting summary judgment in favor of Appellees with respect to the

claim of hostile work environment in violation of Title VII.                          To

survive summary judgment, Appellant must create a fact issue on

each of the elements of a hostile work environment claim: (1)

racially discriminatory intimidation, ridicule and insults that

are; (2) sufficiently severe or pervasive that they; (3) alter the

conditions       of    employment;        and   (4)    create   an    abusive   working

environment.          See DeAngelis v. El Paso Mun. Police Officers Ass'n,

51 F.3d 591, 594 (5th Cir.1995) (involving hostile work environment

based on sexual harassment).                    To determine whether a working

environment is hostile or abusive, all circumstances must be

considered, including “the frequency of the discriminatory conduct;

its severity; whether it is physically threatening or humiliating,

or   a    mere     offensive        utterance;      and    whether    it   unreasonably

interferes       with    an    employee's       work      performance.”      Harris   v.

Forklift Systems, Inc., 510 U.S. 17, 23 (1993).

         Appellant must show that the discriminatory conduct was severe

or pervasive enough to create an objectively hostile or abusive

work      environment.        Id.    at   370.      This    Court    has   opined   that

“[d]iscriminatory verbal intimidation, ridicule, and insults may be

sufficiently severe or pervasive to alter the conditions of the


                                                9
victim's employment and create an abusive working environment that

violates Title VII.”             Wallace v. Texas Tech University, 80 F.3d

1042, 1049 n. 9 (5th Cir.1996) (citing DeAngelis, 51 F.3d at 593).

     Appellant,        in   an    attempt    to       demonstrate    a    hostile   work

environment, asserts that her employer treated her worse than non-

African-American        pharmacists         in     terms    of     scheduling,      work

performance expectations, and disciplinary incidents (including

threats of termination).              The district court granted summary

judgment    on   the    hostile      work    environment         claim,    ruling   that

Appellant “failed to provide any evidence that any of the alleged

harassing events were based on her race or had a racial character

or purpose.” (emphasis in original). The court further noted that

Appellant did not recall ever hearing a racist remark during her

employment.

     After reviewing the record, we are not persuaded that the

treatment     alleged       constitutes          an    objectively        hostile   work

environment.     Furthermore, we agree with the district court that

Appellant has failed to show that the harassment was racially

based.     Accordingly, the district court properly granted summary

judgment with respect to the hostile work environment claim.

     In    conclusion,      the     district      court’s    summary       judgment   is

AFFIRMED.




                                            10
