     Case: 10-41261 Document: 00511484377 Page: 1 Date Filed: 05/20/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                            May 20, 2011
                                     No. 10-41261
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk




ORA ELLIS,

                                                   Plaintiff-Appellant,

versus

COMPASS GROUP USA, INCORPORATED, Doing Business as Chartwells,

                                                   Defendant-Appellee.




                    Appeal from the United States District Court
                         for the Eastern District of Texas
                              USDC No. 1:08-CV-366




Before DAVIS, SMITH, and SOUTHWICK, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*


       Ora Ellis appeals, pro se, a summary judgment in favor of her employer,


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 10-41261

Chartwells, on her employment discrimination and retaliation claims. Finding
no error, we affirm.


                                       I.
      Chartwells provides food, beverage, and other catering services to Lamar
University. In 2003, Ellis was hired by Chartwells to work as a baker at a din-
ing hall.
      In November 2007, Ellis took a temporary medical leave of absence. Short-
ly after returning, she attempted, during work hours, to get some of her cowork-
ers to sign statements stating that they believed she was being overworked and
that they had previously received overtime by helping in the bakery while Ellis
was on medical leave. Ellis also brought a tape recorder to work to record state-
ments from her coworkers, and she reviewed other employees’ time cards.
      None of the employees agreed to provide statements to Ellis. To the con-
trary, two of them complained to a supervisor that Ellis was harassing them by
pressuring them to sign statements they did not want to sign. Those two em-
ployees also submitted written complaints regarding Ellis. In light of the com-
plaints, in December 2007, Chartwells suspended Ellis pending an investigation
into the complaints.
      In January 2008, Ellis met with her supervisor and was given a written
counseling report. The supervisor explained that Chartwells had concluded that
her inappropriate and harassing behavior had created an uncomfortable work
environment for her coworkers. Following the meeting, Ellis was allowed to re-
turn to work at the same pay as before her suspension.
      Within two weeks of the meeting, Ellis filed a charge of discrimination
with the Equal Employment Opportunity Commission (“EEOC”). Chartwells
was informed of the charge in February 2008. Before filing the charge, and
before her suspension, Ellis had contacted the EEOC on the phone—but no one

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                                   No. 10-41261

at Chartwells was aware of her contact with the EEOC until they learned of the
formal charge in February.
      The EEOC issued a right-to-sue notice to Ellis in April 2008, so she sued
Chartwells under title VII of the Civil Rights Act of 1964. She alleged that
Chartwells had discriminated against her on the basis of race by giving a heavier
workload to her than to other employees and by refusing to provide workers to
assist with her workload. She also claimed that her suspension was retaliation
for her having filed the EEOC complaint.
      Chartwells moved for summary judgment, but Ellis failed to respond and
did not submit any competent summary judgment evidence to dispute Chart-
wells’s version of the facts. A magistrate judge issued a report recommending
granting summary judgment and dismissing Ellis’s suit in its entirety.
      Ellis filed objections to the recommendation. The district court, in light of
the objections, conducted a de novo analysis of the motion for summary judg-
ment, adopted the report in its entirety, and granted summary judgment.


                                         II.
      We review a summary judgment de novo, “using the same standard as that
employed by the district court under Rule 56.” Kerstetter v. Pac. Scientific Co.,
210 F.3d 431, 435 (5th Cir. 2000). Summary judgment is warranted “if the
movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” F ED. R. C IV. P. 56(a). There
is no genuine issue for trial “[i]f the record, taken as a whole, could not lead a ra-
tional trier of fact to find for the non-moving party.” Kipps v. Caillier, 197 F.3d
765, 768 (5th Cir. 1999). We review evidence in the light most favorable to the
nonmoving party, but conclusional allegations and unsubstantiated assertions
may not be relied on as evidence by the nonmoving party. See Little v. Liquid
Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc).

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      “It is well settled in this Circuit that the scope of appellate review on a
summary judgment order is limited to matters presented to the district court.”
Keelan v. Majesco Software, Inc., 407 F.3d 332, 339 (5th Cir. 2005). “If a party
fails to assert a legal reason why summary judgment should not be granted, that
ground is waived and cannot be considered or raised on appeal.” Vaughner v.
Pulito, 804 F.2d 873, 877 n.2 (5th Cir. 1986). Nonetheless, in our de novo review
of a summary judgment, we are obliged to assess whether “the movant has [met]
the burden of establishing the absence of a genuine issue of material fact . . . re-
gardless of whether any response was filed.” Hetzel v. Bethlehem Steel Corp., 50
F.3d 360, 362 n.3 (5th Cir. 1995) (quotation marks and citation omitted). Thus,
even though Ellis has failed to raise any arguments opposing summary judg-
ment beyond a rote recitation of her complaint, we will analyze all competent
summary judgment evidence in the record to determine whether summary judg-
ment is appropriate.


                                         A.
      Title VII prohibits intentional discrimination “against any individual with
respect to his compensation, terms, conditions, or privileges of employment, be-
cause of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C.
§ 2000e-2(a). In title VII cases where, as here, the plaintiff has not presented
any direct summary judgment evidence of discrimination, we apply the burden-
shifting framework in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973):
A plaintiff alleging disparate treatment must first prove a prima facie case of
discrimination by showing that (1) he is a member of a protected class; (2) he
was qualified for the position; (3) he suffered an adverse employment action; and
(4) others similarly situated were treated more favorably. Id. at 802.
      Once a plaintiff has made a prima facie case, the employer must provide
“some legitimate nondiscriminatory reason” for the adverse action taken. Id. at

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802. If the employer provides a nondiscriminatory reason, the burden shifts to
the plaintiff, who must show a genuine issue of material fact that either (1) the
employer’s proffered nondiscriminatory reason is a pretext for discrimination or
(2) regardless of the nondiscriminatory reason, race was a motivating factor in
the employer’s action. See Alvarado v. Texas Rangers, 492 F.3d 605, 611 (5th
Cir. 2007) (citation omitted).
      Ellis alleges that Chartwells discriminated on the basis of race by giving
her a heavier workload than other employees and by refusing to provide workers
to help with her workload. Ellis, however, cannot prove a prima facie case of dis-
crimination, because she cannot satisfy the last two requirements of McDonnell
Douglas: that she suffered an adverse employment action and that others simi-
larly situated were treated more favorably.
      The undisputed summary judgment evidence shows that the only harm al-
leged by Ellis as part of her discrimination claim is her belief that she has been
routinely overworked and is required to handle a heavier workload than are oth-
er employees. Neither of those, however, qualifies as an adverse employment ac-
tion. Adverse employment actions include only ultimate employment actions,
such as hiring, firing, promoting, compensating, or granting leave. See McCoy
v. City of Shreveport, 492 F.3d 551, 559 (5th Cir. 2007) (citation omitted). Im-
posing a higher workload than that given to other employees is not an adverse
employment action under title VII. See Benningfield v. City of Houston, 157 F.3d
369, 376-77 (5th Cir. 1998).
      Even if, however, Ellis could raise a genuine issue of material fact regard-
ing suffering an adverse employment action, her discrimination claim would still
fail, because she has not presented any evidence suggesting that others similarly
situated, but outside her protected class, were treated differently. Thus, sum-
mary judgment was proper on Ellis’s discrimination claim.



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                                        B.
      Title VII also prohibits retaliation against an employee who has engaged
in activity protected by the act: “It shall be an unlawful employment practice for
an employer to discriminate against any of his employees . . . because he has op-
posed any practice made an unlawful employment practice by this subchapter,
or because he has made a charge, testified, assisted, or participated in any man-
ner in an investigation, proceeding, or hearing under this subchapter.” 42
U.S.C. § 2000e-3. To establish a retaliation claim, a plaintiff must show that
(1) he engaged in a protected activity; (2) the employer took an adverse employ-
ment action against him; and (3) there was a causal connection between the pro-
tected activity and the adverse action. See Mota v. Univ. of Tex. Houston Health
Science Ctr., 261 F.3d 512, 519 (5th Cir. 2001). Protected activities consist of
(1) opposing any practice deemed an unlawful employment practice by title VII
(the “opposition clause”) or (2) making a charge, testifying, assisting, or partici-
pating in any manner in an investigation, proceeding, or hearing under title VII
(the “participation clause”). Douglas v. DynMcDermott Petroleum Operations
Co., 144 F.3d 364, 372-73 (5th Cir. 1999) (citation omitted).
      The McDonnell Douglas burden-shifting framework described above ap-
plies in retaliation cases as well: A plaintiff must first prove a prima facie case.
See Septimus v. Univ. of Houston, 399 F.3d 601, 607-08 (5th Cir. 2005). Once he
has done that, the employer must provide “some legitimate nonretaliatory rea-
son” for the adverse action. Id. at 608. If an employer meets that burden, the
plaintiff must then show that the nonretaliatory reason was a pretext or that the
protected activity was still a motivating factor. Id. Under the pretext approach,
the plaintiff must show that the adverse employment action would not have been
taken “but for” the employee’s decision to engage in a protected activity. Id.
      Ellis alleges that Chartwells retaliated by suspending her, but her claim
fails, because she cannot establish a prima facie case of retaliation. At the time

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                                      No. 10-41261

of her suspension, she was not engaging in any protected activity.
       For her actions to satisfy the opposition clause, Ellis must have had an ob-
jectively reasonable belief that Chartwells was engaged in unlawful employment
practices. See Byers v. Dallas Morning News, Inc., 209 F.3d 419, 428 (5th Cir.
2000). The undisputed evidence shows that such a belief would be unreasonable.
Ellis admits that immediately before her suspension, she was attempting to ob-
tain statements from coworkers to prove that Chartwells was not allowing them
to assist her, that Chartwells was overworking her, and that she was being given
a heavier workload than were other employees.1 As we stated above, none of
these alleged harms is an adverse employment practice. Thus, it would be
objectively unreasonable for Ellis to believe that Chartwells was engaged in
unlawful employment practices if the only alleged consequence was an increased
workload.
       Ellis also cannot satisfy the participation clause because, at the time of her
suspension, she was not making a charge, testifying, assisting, or participating
in any manner in an investigation, proceeding, or hearing under title VII. She
sought statements from her coworkers in December 2007 but did not file her
EEOC charge until January 2008. Thus, there was no title VII proceeding at the
time of the activity that led to her suspension—even the alleged retaliation oc-
curred before the filing of an EEOC charge. See id. (“[I]n the instant case, the
‘participation clause’ is irrelevant because Byers did not file a charge with the
EEOC until after the alleged retaliatory discharge took place.”).
       Furthermore, even assuming arguendo that Ellis was engaging in protect-
ed activity and could satisfy the other elements of a prima facie retaliation


       1
         Two of the employees approached by Ellis were also black females. If Ellis was truly
operating under the objectively reasonable belief that Chartwells was engaging in unlawful
employment practices, it would be odd for her to approach persons similarly situated and ob-
tain statements claiming that they were not being treated in the same manner as Ellis (i.e.,
that they were not being overworked as Ellis was).

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                                 No. 10-41261

claim, summary judgment was still proper, because Chartwells has provided a
legitimate nonretaliatory reason for Ellis’s suspension that Ellis has not re-
butted. The undisputed evidence in the record consistently points to the conclu-
sion that Ellis’s suspension was based solely on her harassing behavior to her
coworkers. She does not contest the accuracy of Chartwells’s evidence or provide
competent summary judgment evidence suggesting that this nonretaliatory
reason was pretextual or that retaliation was the motivating factor in her
suspension.
      AFFIRMED.




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