     Case: 20-20025      Document: 00515486330         Page: 1    Date Filed: 07/13/2020




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

                                                                                FILED
                                    No. 20-20025                            July 13, 2020
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
JESSICA DEVALENTINO,

              Plaintiff - Appellant

v.

HOUSTON INDEPENDENT SCHOOL DISTRICT,

              Defendant - Appellee




                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 4:18-CV-393


Before WIENER, HAYNES, and COSTA, Circuit Judges.
PER CURIAM:*
       Jessica DeValentino appeals the district court’s grant of summary
judgment to the Houston Independent School District (“HISD”) on her
employment discrimination claims under Title VII of the Civil Rights Act of
1964 and the Texas Commission on Human Rights Act (“TCHRA”).                                    We
AFFIRM.



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 20-20025
                             I.    Background
      DeValentino, an African American woman, worked as an assessment
administrator in HISD’s Student Assessment Department for approximately
two years until she was fired in September 2016. In April 2016, DeValentino
was moved to the online assessment team.              The team consisted of
DeValentino, two additional online assessment administrators who were
Hispanic, and their supervisor, Diana Bidulescu, who is Caucasian.
DeValentino and Bidulescu did not get along.
      Just three days after joining the new team, DeValentino filed a formal
complaint against Bidulescu. DeValentino, Bidulescu, and Leng Fritsche, the
assistant superintendent of the Student Assessment Department, met to
discuss DeValentino’s complaint. In May, Bidulescu issued three memoranda
to DeValentino regarding her inability to follow instructions or comply with
the department’s professional conduct standards. Around that same time,
DeValentino filed two additional complaints against Bidulescu, one of which
alleged racial discrimination.
      In August, following a poor performance evaluation by Bidulescu,
DeValentino was placed on a Prescriptive Plan for Assistance (“PPA”) until
September 2.    The PPA identified three specific areas for improvement:
quality of materials, timeliness and teamwork, and organization.          It also
entailed biweekly check-in meetings. In these check-in meetings, Bidulescu
identified PPA goals that DeValentino had failed to meet. Citing continued
poor job performance and inability to improve while on the PPA, HISD
terminated DeValentino on September 27.
      DeValentino sued HISD, claiming that HISD violated Title VII and the
TCHRA by terminating her because of her race and retaliating against her
based on her discrimination complaints.       The district court referred the
matter to a magistrate judge. HISD moved for summary judgment on both
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                                    No. 20-20025
claims, and the magistrate judge recommended granting the motion with
respect to the racial discrimination claim only. The magistrate judge’s report
and recommendation (“R&R”) warned that a failure to file written objections
within fourteen days from service of the R&R would foreclose de novo review
by the district judge or the appellate court.
      HISD timely objected to the R&R on the retaliation claim, but
DeValentino did not timely object on the discrimination claim. The district
court granted HISD’s motion in full. It found no plain error in the magistrate
judge’s recommendation on the discrimination claim and adopted the R&R on
that point, and it concluded that DeValentino failed to present a material fact
dispute regarding pretext for her retaliation claim.          DeValentino timely
appealed.
                              II.    Discussion
      HISD’s argues that DeValentino’s arguments are inadequately briefed
in violation of Federal Rule of Appellate Procedure 28 and our corresponding
Fifth Circuit Rule 28 such that we should summarily affirm. DeValentino’s
pro se brief is less than fulsome. We need not reach this question as to the
discrimination claim, however, because even construing her arguments
liberally, they still fail. See Grant v. Cuellar, 59 F.3d 523, 525 (5th Cir. 1995)
(per curiam) (holding that we may consider a noncompliant brief when the
noncompliance does not prejudice the opposing party).
      On the other hand, she provides nothing on the retaliation claim, so we
conclude that it should not be considered on appeal. She broadly describes
the issue as involving “the decision for summary judgment,” but she provides
no evidentiary support regarding pretext for her retaliation claim. See Price
v. Digital Equip. Corp., 846 F.2d 1026, 1028 (5th Cir. 1988) (per curiam)
(observing that prejudice would likely exist if there were “disputed facts


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                                   No. 20-20025
cloud[ing] the resolution of [the] legal issue”). We thus summarily affirm on
the retaliation claim and turn to the discrimination claim.
      We review the district court’s holding on that issue for plain error
because DeValentino failed to timely object to the R&R. See Ortiz v. City of
San Antonio Fire Dep’t, 806 F.3d 822, 825 (5th Cir. 2015) (holding that plain
error review applies when a party fails to timely object to a magistrate
judge’s R&R despite being served with notice of the consequences of failing to
do so). To prevail under this standard, DeValentino must show that (1) the
district court committed an error; (2) “the error was plain, which means clear
or obvious;” (3) the error affected her substantial rights; and (4) “not
correcting the error would seriously impact the fairness, integrity, or public
reputation of judicial proceedings.” 1 Id. at 825–26 (internal quotation marks
and citation omitted). We hold that the district court did not plainly err in
granting summary judgment on DeValentino’s discrimination claim.
      The magistrate judge identified the correct legal standard: the
McDonnell Douglass burden-shifting framework. See Shackelford v. Deloitte
& Touche, LLP, 190 F.3d 398, 403–04 & n.2 (5th Cir. 1999) (analyzing Title
VII and TCHRA discrimination claims under McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 801–03 (1973)). The magistrate judge also correctly
applied the McDonnell Douglas framework. At step one, HISD conceded that
DeValentino had presented a prima facie case. See Shackelford, 190 F.3d at
404. Thus, the magistrate judge proceeded to step two and concluded that
HISD had asserted, and supported with sufficient evidence, a legitimate,
nondiscriminatory reason to terminate DeValentino: poor work performance.
See id.   On the third and last step, the magistrate judge concluded that
DeValentino had failed to raise a genuine material fact issue regarding

      1  DeValentino misunderstands this standard. We review whether the court plainly
erred, not whether she erred.
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                                   No. 20-20025
pretext. See id. The R&R noted that DeValentino had failed to point to any
evidence in the record supporting her claims that Bidulescu reported
inaccurate information or that two similarly situated employees were treated
more favorably than she was. Indeed, DeValentino confirms that she did not
“address[] pretext when the case was at the District Court.” We identify no
error in the magistrate judge’s R&R and thus hold that the district court did
not    plainly   err   in   granting   summary    judgment    on   DeValentino’s
discrimination claim.
       AFFIRMED.




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