     Case: 10-60552 Document: 00511332964 Page: 1 Date Filed: 12/27/2010




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

                                                 FILED
                                                                         December 27, 2010

                                     No. 10-60552                           Lyle W. Cayce
                                   Summary Calendar                              Clerk



JANICE D. NATHANIEL,

                                                   Plaintiff-Appellant
v.

MISSISSIPPI DEPARTMENT OF WILDLIFE, FISHERIES AND PARKS,

                                                   Defendant-Appellee




                    Appeal from the United States District Court
                      for the Southern District of Mississippi
                              USDC No. 3:07-CV-549


Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges.
PER CURIAM:*
       Appellant Janice D. Nathaniel (“Nathaniel”) appeals the district court’s
order granting the Mississippi Department of Wildlife, Fisheries and Parks’ (the
“Department”) motion for summary judgment and dismissing Nathaniel’s sex
discrimination, 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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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                                     No. 10-60552

distress claims.1 The district court concluded that Nathaniel failed to create a
fact issue as to whether the defendant’s reasons for not promoting Nathaniel
were pretextual and failed to set forth evidence to support a prima facie case for
retaliation. Nathaniel raises three issues on appeal: (1) whether the district
court’s opinion was based on a fundamental error of fact; (2) whether a genuine
issue of material fact existed as to the Department’s proffered reasons for not
promoting Nathaniel; and (3) whether the district court erred in granting
summary judgment to the Department on Nathaniel’s retaliation claim. We
conclude that the district court did not err in granting the Department’s motion
for summary judgment and in dismissing Nathaniel’s claims, and, therefore, we
AFFIRM.
      I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
      Nathaniel began working for the Department on July 1, 2003, as a Park
Worker I. Nathaniel’s duties consisted of collecting fees at a ranger station. She
inquired several times about opportunities for advancement and sought to be
promoted 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
Department in the position of Park Worker I.
      In 2005, the Department hired Craig Belton (“Belton”) as a part-time
employee.    In 2006, Belton indicated that he was interested in a full-time
position and was promoted from his part-time position to a full-time Park
Worker II position.
      Nathaniel filed a sex discrimination charge with the Equal Employment
Opportunity Commission (“EEOC”) in January 2007, claiming that she was
discriminated against because she “had been employed longer, [she and Belton]
perform the same duties, and [she] can work any time, but [Belton] cannot


      1
         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

because of his (8-5:00) primary job.” The EEOC issued Nathaniel a right to sue
letter on May 21, 2007.
       Nathaniel filed suit on August 17, 2007 in Mississippi state court claiming
that 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
and unlawfully retaliating against her for bringing a sex discrimination claim.
Nathaniel claimed that in December 2006, the Department retaliated against
her by no longer allowing her to work in the office.2 Otherwise, she stated that
she retained the same job duties. Her complaint also included a claim for
intentional infliction of emotional distress and punitive damages.                        The
Department removed the lawsuit to the United States District Court for the
Southern District of Mississippi on September 18, 2007.
       After the parties conducted discovery, the Department moved for summary
judgment, which the district court granted, entering a final judgment on May 25,
2010. Nathaniel timely appealed.
             II. STANDARD OF REVIEW AND JURISDICTION
       We review a grant of summary judgment de novo, applying the same
standard as the district court. Gen. Universal Sys., Inc. v. HAL Inc., 500 F.3d
444, 448 (5th Cir. 2007). Summary judgment is appropriate if the moving party
can show 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).3 The
evidence must be viewed in the light most favorable to the non-moving party.



       2
         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.
       3
        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

TIG Specialty Ins. Co. v. Pinkmonkey.com, Inc., 375 F.3d 365, 369 (5th Cir.
2004).
                               III. DISCUSSION
A.    Whether the district court’s opinion was based on a fundamental error of
      fact.
      Nathaniel contends that the district court erred in finding that Belton
worked for the same employer for nine years because his previous
employer—SMMH—was not a state agency. We conclude that Nathaniel’s first
point 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, non-
discriminatory reason for hiring Belton. Belton’s longest period of employment
with a single employer was nine years, as opposed to Nathaniel’s longest period
of employment with one employer, which was three years. The district court’s
decision to conclude that the Department’s proffered reason constituted a non-
discriminatory reason was not a “fundamental error of fact.” The Department
relied on the longevity of prior employment in making its decision, and the
district court properly concluded that it should not substitute its own judgment
for that of the Department’s when “evaluating what types of experience are most
valuable for an employee . . . in the absence of proof that the standards were not
consistently applied or were so irrational or idiosyncratic as to suggest a cover-
up.” EEOC v. La. Office of Cmty. Servs., 47 F.3d 1438, 1446 (5th Cir. 1995). We
find it irrelevant whether Belton’s prior employment was with a state agency or
with a private entity and reject Nathaniel’s first point of error.
B.    Whether a genuine issue of material fact existed as to the Department’s
      proffered reasons for not promoting Nathaniel.
      Nathaniel next argues that the district court erred in giving conclusive
weight to the Department’s proffered reasons for hiring Belton rather than
Nathaniel, and that the court should have considered whether the Department’s



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                                  No. 10-60552

reasons were pretextual. The district court held that Nathaniel set forth a
prima facie case for sex discrimination.      According to the burden-shifting
framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), once the
plaintiff meets her burden of establishing a prima facie case, the burden shifts
to the defendant to provide a legitimate, non-discriminatory reason for the
decision. Id. at 802. If the defendant does so, as the Department did in this
case, the burden then shifts back to the plaintiff to show that the defendant’s
proffered reason is a pretext for unlawful discrimination. Id. at 804. Here, the
Department offered the following reasons for promoting Belton over Nathaniel:
his longer history of stable work discussed above, the fact that he had a college
degree and Nathaniel did not, and a legislative directive to move part-time
employees into full-time positions. See Miss. State Bd. Policy & Procedures
Manual, § 4.21.10 (Rev. Apr. 2004).
      Nathaniel relies on Reeves v. Sanderson Plumbing Products, Inc., 530 U.S.
133 (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
employer’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
substantial evidence to discredit the defendant’s proffered reason for firing the
plaintiff. Id. at 151-53. Unlike Reeves, Nathaniel did not offer any evidence to
discredit the Department’s assertion that it hired Belton rather than Nathaniel
because of a legislative directive, the fact that Belton had a college degree, and
the fact that Belton had a more stable work history.
      On appeal, Nathaniel argues that the Department failed to explain “why
[it] could not meet this [legislative] directive by promoting [Nathaniel] to the
position of Park Worker II and offering the full-time position of Park Worker I
to Mr. Belton . . . .” Nathaniel’s argument, however, ignores the fact that the

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                                  No. 10-60552

Department was only required to provide a “legitimate, non-discriminatory
reason” for not hiring Nathaniel; it was not required to persuade the court that
“it had convincing, objective reasons for preferring the chosen applicant above
the plaintiff.” Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256-57 (1981)
(holding that “[t]he Court of Appeals . . . misconstrued the nature of the burden
[of] McDonnell Douglas and its progeny” by placing “on the defendant the burden
of persuading the court that it had convincing, objective reasons for preferring
the 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
Department offered three legitimate, non-discriminatory reasons for hiring
Belton, and Nathaniel failed to rebut these reasons. Therefore, we hold that the
district court properly concluded that Nathaniel failed to raise any issue of
material fact indicating that the Department’s proffered reasons were
pretextual.
C.    Whether the district court erred in granting summary judgment to the
      Department on Nathaniel’s retaliation claim.
      Finally, Nathaniel asserts that the district court erred in failing to find
that a genuine issue of material fact existed with respect to Nathaniel’s
retaliation claim. Rule 56 makes clear that if, after a party has adequate time
for discovery, it fails to provide evidence on one element of its prima facie case,
“there can be ‘no genuine issue as to any material fact,’ since a complete failure
of proof concerning an essential element of the nonmoving party’s case
necessarily renders all other facts immaterial.” Celotex Corp. v. Catrett, 477 U.S.
317, 322-23 (1986).    We conclude that the district court properly granted
summary judgment to the Department on Nathaniel’s retaliation claim because
Nathaniel failed to provide evidence to support several elements of her prima
facie case.


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                                       No. 10-60552

       To establish a prima facie case for unlawful retaliation under Title VII,
Nathaniel must show that: “(1) she engaged in protected activity; (2) an adverse
employment action occurred; and (3) a causal link exists between the protected
activity and the adverse employment action.” Turner v. Baylor Richardson Med.
Ctr., 476 F.3d 337, 348 (5th Cir. 2007). Nathaniel proved the first element,
because 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
elements of her prima facie case.
       First, Nathaniel offered no evidence that not being allowed to work in the
office after December 2006 constituted an adverse employment action. She has
not explained what “working in the office” means and how it differs from
anything else she still does. While it is true that a lateral reassignment may be
actionable, it is not automatically so. White, 548 U.S. at 71. The plaintiff must
demonstrate that “a reasonable employee would have found the challenged
action materially adverse, which in this context means it might well have
dissuaded a reasonable worker from making or supporting a charge of
discrimination.”      Id. at 68 (internal quotations omitted).            Instead, in her
deposition, Nathaniel testified that she held the same position—fee collector at
the 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
any evidence to show that the Department’s decision not to allow her to work in
the office was a materially adverse action.4



       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

                          IV. CONCLUSION
    The district court’s judgment dismissing Nathaniel’s claims is therefore
AFFIRMED.




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