                                                    United States Court of Appeals
                                                             Fifth Circuit
                                                          F I L E D
                    In the                                 August 4, 2004
United States Court of Appeals                        Charles R. Fulbruge III
          for the Fifth Circuit                               Clerk

            ___________________

                m 03-51167
              Summary Calendar
            ___________________




        PERSEVERANDA CLAYTON,

                                   Plaintiff-Appellant,

                   VERSUS

          DONALD H. RUMSFELD,
    SECRETARY, DEPARTMENT OF DEFENSE,
        ARMY/AIR FORCE EXCHANGE,

                                   Defendant-Appellee.



            ___________________

  Appeal from the United States District Court
       for the Western District of Texas
               m SA-02-CV-231
            ___________________
Before SMITH, DEMOSS, and STEWART,                         tember 1999, an unsatisfactory special perfor-
  Circuit Judges.                                          mance appraisal in December 1999, and a de-
                                                           motion by her second-line supervisor, General
JERRY E. SMITH, Circuit Judge.*                            Manager Daniel Metsala, from her supervisor
                                                           position to a retail position at Lackland Air
   The plaintiff, Perseveranda Clayton, is an              Force Base. Clayton took sick leave and never
Asian female who worked as a Safety and                    reported to work there. She was discharged in
Security Supervisor at Randolph Air Force                  May 2001 pursuant to regulations that require
Base from July 1997 to January 2000. She                   termination if the employee has not returned to
sued her employer, the Army/Air Force Ex-                  work within one year.
change Service, via the Secretary of Defense,
for employment discrimination and retaliation                  Clayton requested and received an eviden-
under title VII. The district court entered                tiary hearing before an administrative law
summary judgment for the government, and                   judge (“ALJ”) on September 20, 2001. The
we affirm.                                                 ALJ issued a decision in favor of the govern-
                                                           ment on October 29, 2001, whereupon Clay-
   Clayton seeks to show that certain events               ton sued.
constituted adverse employment actions nec-
essary for a claim of retaliation. In addition,                Summary judgment is appropriate where
she asserts that the district court incorrectly            the pleadings, answers to interrogatories, ad-
determined that her claims of demotion and                 missions on file, and affidavits show that there
constructive discharge were not administra-                is no genuine issue as to any material fact and
tively exhausted. In the alternative, she main-            that the moving party is entitled to judgment
tains that legal technicalities should not ob-             as a matter of law. Celotex Corp. v. Catrett,
struct her claims of demotion and constructive             477 U.S. 317, 322 (1986). The movant bears
discharge.                                                 the initial responsibility of demonstrating the
                                                           absence of a genuine issue of material fact with
   In November 1998, Kelley Hughes, who                    respect to those issues on which he bears the
had previously worked at Lackland Air Force                burden of proof at trial. Transamerica Ins.
Base, was selected over Clayton for a supervi-             Co. v. Avenell, 66 F.3d 715, 718 (5th Cir.
sory position at the Army/Air Force Exchange               1995) (per curiam). Once the burden of show-
Service. Hughes became Clayton’s first line                ing an absence of a genuine issue of material
supervisor. Clayton alleges that during this               fact has been met, the nonmoving party must
time, she was the subject of disparaging com-              establish the existence of evidence creating an
ments and continuous scrutiny over her work                issue of fact that can be properly characterized
performance by Hughes.                                     as outcome determinative. Hanchey v. Ener-
                                                           gas Co., 925 F.2d 96, 97 (5th Cir. 1990). A
   Clayton received a letter of warning in Sep-            summary judgment is reviewed de novo.
                                                           Scales v. Slater, 181 F.3d 703, 708 (5th Cir.
                                                           1999).
   *
     Pursuant to 5TH CIR. R. 47.5, the court has
determined that this opinion should not be pub-
lished and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.

                                                       2
                       I.                              Dollis v. Rubin, 77 F.3d 777, 781-82 (5th Cir.
   Title VII provides in relevant part that “it        1995). Specifically, ultimate employment de-
shall be an unlawful employment practice for           cisions include act s such as hiring, granting
an employer to discriminate against any of his         leave, discharging, promoting, and compensat-
employees . . . because he has made a charge           ing. Id. at 782. Interlocutory or intermediate
. . . under this subchapter.” 42 U.S.C.                decisions that can lead to an ultimate decision
§ 2000e-3(a). A retaliation claim has three el-        are insufficient to support a prima facie case
ements: (1) The employee engaged in activity           of retaliation. Mattern, 104 F.3d at 708. Con-
protected by title VII; (2) the employer took          sequently, the “ultimate employment decision”
adverse employment action against the em-              doctrine requires that actionable adverse em-
ployee; and (3) a causal connection exists be-         ployment actions “have more than a mere tan-
tween that protected activity and the adverse          gential effect on a possible future ultimate em-
employment action. Shirley v. Chrysler First,          ployment decision.” Mota v. Univ. of Tex.
Inc., 970 F.2d 39, 42 (5th Cir. 1992).                 Houston Health Sci. Ctr., 261 F.3d 512, 519
                                                       (5th Cir. 2001) (quoting Walker v. Thompson,
   A title VII plaintiff may recover only if the       214 F.3d 615, 629 (5th Cir. 2000)).
challenged employment decision rises to the
level of an “adverse employment action or                 We use a balancing test to determine
must materially affect the terms and conditions        whether title VII’s protections may be denied
of employment.” Mattern v. Eastman Kodak               to an employee regarding actions that adverse-
Co., 104 F.3d 702 (5th Cir. 1997). This is             ly affect his performance. Jones v. Flagship
true for both discrimination and retaliation           Int’l, 793 F.2d 714, 727 (5th Cir.1986). The
claims. Barrow v. New Orleans S.S. Ass’n, 10           employer’s right to run its business must be
F.3d 292, 298 (5th Cir. 1994). An adverse              balanced against the right of the employee to
employment action could include a discharge,           express his grievances and promote his own
demotion, refusal to hire, refusal to promote,         welfare. Id. The employee’s conduct must be
reprimand, or acts of sabotage by employees            measured as reasonable in light of the circum-
against other employees, either condoned or            stances. Id.
directed by an employer for the purpose of es-
tablishing cause for discharge. Mattern, 104              “[A] retaliation claim cannot be based sole-
F.3d at 707. Alternatively, merely placing a           ly on an employer’s act of ‘limiting’ an em-
memorandum regarding an employee’s perfor-             ployee ‘in any way that would deprive [that
mance in his personnel file does not in itself         employee] of employment opportunities . . . .’”
constitute an adverse employment action. Id.           Burger v. Cent. Apartment Mgmt., Inc., 168 F.
Also, lowered performance ratings are not              3d 875, 878-79 (5th Cir. 1999) (quoting 42
adverse employment decisions. Douglas v.               U.S.C. § 2000e-2(a)(2) (brackets in original)).
DynMcDermott Petroleum Operations Co.,                 Therefore, unlawful employment practices
144 F.3d 364, 373 (5th Cir. 1998).                     include only ultimate employment decisions
                                                       and not vague harms.” Id. at 879.
   Title VII was designed to address ultimate
employment decisions, not every decision by               The actions described by Clayton are too
employers that arguably might have some tan-           tangential to be ultimate employment deci-
gential effect on those ultimate decisions.            sions. Although those acts may be seen as


                                                   3
limiting her, they are not ultimate employment          Furthermore, a title VII cause of action may be
actions. Specifically, the actions she maintains        based not only on the specific complaints made
are adverse employment actions include possi-           in the initial EEOC charge, but also on any
ble spying, a non-promotable rating, scru-              kind of discrimination like or related to the
tinization, a letter of warning, rejection of           charge’s allegations, limited only by the scope
Clayton’s request to have a third person of her         of the EEOC investigation that could reason-
choosing present at weekly meetings with her            ably be expected to grow out of the initial
supervisors, an eventual demotion and transfer          charge of discrimination. Id.
to Lackland Air Force Base, and exclusion and
unfair treatment.                                          The crucial element of a charge of discrim-
                                                        ination is the factual statement contained
    The district court correctly determined that,       therein. Sanchez v. Standard Brands, Inc.,
with the exception of the demotion with trans-          431 F.2d 455, 462 (5th Cir. 1970). Next, the
fer, the actions described are not adverse              administrative charge must be viewed in its
employment actions. Analogous to the events             broadest reasonable sense in order effectively
in Mattern, 104 F.3d at 708, the events Clay-           to attempt to eliminate, by the administrative
ton complains of are similar to disciplinary            process, possible discriminatory practices and
filings and supervisor reprimands. According-           policies. Id. at 467. One of the central pur-
ly, the district court properly found that, with        poses of the charge is to put the employer on
the exception of her demotion and possible              notice of the existence and nature of the charg-
constructive discharge, the acts Clayton relies         es. Manning v. Chevron Chem. Co., 332 F.3d
on are impertinent, and summary judgment                874, 878-89 (5th Cir. 2003).
was properly granted.
                                                            To notify employers adequately about the
                       II.                              nature of the charges against them, employees
   Courts have no jurisdiction to consider title        must inform their employers from the outset
VII claims as to which the aggrieved party has          about their claims of discrimination. Id. Al-
not exhausted administrative remedies. Nat’l            ternatively, allowing a complaint to encompass
Ass’n of Gov’t Employees v. City Pub. Serv.             allegations outside the ambit of the predicate
Bd., 40 F.3d 698, 711 (5th Cir. 1994) (citing           EEOC charge would circumvent the EEOC’s
Tolbert v. United States, 916 F.2d 245, 247-            investigatory and conciliatory role, as well as
48 (5th Cir. 1990) (per curiam)). The primary           deprive the charged party of notice of the
purpose of the administrative exhaustion re-            charges. Babrocky v. Jewel Food Co., 773
quirement is to allow the agency, in its investi-       F.2d 857, 863 (7th Cir. 1985).
gatory and conciliatory role, fully to investi-
gate and attempt to resolve claims of discrimi-            The district court found that the administra-
nation. Nicol v. Imagematrix, Inc., 767 F.              tive record of Clayton’s EEOC charge indi-
Supp. 744, 752 (E.D. Va. 1991). A title VII             cates that she did not raise the issue of her
suit, however, “may extend as far as, but not           constructive discharge in the administrative
further than, the scope of the EEOC investiga-          process. Clayton suggests that she relied on
tion which could reasonably grow out of the             constructive discharge in her response to the
administrative charge.” Fine v. GAP Chem.               motion for summary judgment. Because,
Corp., 995 F.2d 576, 578 (5th Cir. 1993).               however, she did not raise the issue in the ad-


                                                    4
ministrative process, she did not exhaust her           demotion should be cut off because she failed
remedies.                                               to object to the ALJ’s framing of the issues
                                                        during the hearing. Clayton mistakenly as-
   Consequently, the government was not put             serts, however, that her failure to notify her
on notice of the constructive discharge claim.          employer of charges is a procedural technical-
In addition, Clayton did not object to the fram-        ity, for, if she is allowed to circumvent the
ing of the issue by the EEOC and the ALJ,               administrative processes, the EEOC will not be
which issue did not include her demotion                able to serve in its investigatory and concilia-
claim. Thus, Clayton’s demotion claim was               tory role.
abandoned, and the employer was not given
the opportunity effectively to try to eliminate             Clayton’s case is distinguishable from San-
possible discriminatory practices and policies.         chez, on which she relies. There, we held that
Accordingly, the district court correctly en-           failure to check the appropriate box indicating
tered summary judgment.                                 the reason for the claim of discrimination on
                                                        the EEOC charge form, and failure to use the
                      III.                              exact words in harmony with earlier charges,
    Mindful of the remedial and humanitarian            were technical niceties that would not prevent
underpinnings of title VII and of the crucial           a plaintiff from bringing a civil action. San-
role played by the private litigant in the statu-       chez, 431 F.2d at 464. By way of contrast,
tory scheme, court s construing title VII have          Clayton’s claims of demotion and constructive
been reluctant to allow procedural technicali-          discharge did not reflect the essence of the
ties to bar claims brought under the Act. San-          other charges.
chez, 431 F.2d at 461-62. Title VII is de-
signed to protect the many who are unlettered              This is not a case in which procedural tech-
and unschooled in the nuances of literary               nicalities are preventing an employee from
draftsmanship. Id. at 465. Verbal precision             properly bringing a claim. Rather, because the
and finesse are not required from those whom            government was not given notice of Clayton’s
the statute is meant to protect. Id. Further-           constructive discharge and demotion claims,
more, to compel the charging party specifically         the EEOC had no opportunity to investigate.
to articulate, in his charge, the full array of         Consequently, the district court correctly
discrimination he may have suffered may cause           granted summary judgment on Clayton’s de-
the very persons title VII was designed to              motion and constructive discharge claims, be-
protect to lose that benefit because they are           cause they were not administratively ex-
ignorant of, or unable thoroughly to describe,          hausted.
the discriminatory practices to which they have
been subjected. Fellows, 701 F.2d at 451.                  AFFIRMED.

    Clayton points out that she is not an attor-
ney, nor does she have any legal background,
training, or education. She was not represent-
ed by counsel at the September 20, 2001, EEO
hearing. She asserts that it is inconceivable
that her right to assert a claim of disciplinary


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