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

                                                                             FILED
                                                                          February 5, 2009

                                       No. 08-20212                    Charles R. Fulbruge III
                                                                               Clerk

WARREN HOLLOWAY

                                                   Plaintiff-Appellant
v.

DEPARTMENT OF VETERANS AFFAIRS; ERIC K SHINSEKI Secretary,
Department of Veterans Affairs; LARRY GARDNER; JOHN DOE

                                                   Defendants-Appellees



                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 4:04-cv-01395


Before GARWOOD, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Warren Holloway (“Holloway”) appeals the district
court’s order awarding summary judgment to Defendants-Appellants
Department of Veterans Affairs (“VA”), Eric K. Shinseki,1 Larry Gardner, and
John Doe (collectively “Defendants”) in his Title VII case. Holloway argues that


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
       1
          Pursuant to Federal Rule of Civil Procedure 25(d), we have substituted current
Secretary of Veterans Affairs Eric K. Shinseki for former secretary Anthony Principi as a party
to this suit.
                                  No. 08-20212

the district court erred in concluding that he failed to establish a prima facie
case of retaliation under 42 U.S.C. § 2000e-3(a). For the reasons explained
below, we AFFIRM the district court’s grant of summary judgment to
Defendants.
           I. FACTUAL AND PROCEDURAL BACKGROUND
      Holloway, an African-American male, is a former employee of the Michael
E. DeBakery Veterans Medical Center in Houston, Texas. Beginning in 1997,
while employed as a computer specialist, Holloway filed various EEO complaints
alleging racial discrimination and retaliation. On August 21, 2000, the VA
terminated Holloway following his failure to complete paperwork necessary to
obtain a required security clearance.
      Holloway filed the instant Title VII suit in April 2004, alleging racial
discrimination and retaliation relating to his termination, as well as twenty-two
other acts of retaliation against him by the VA, including, inter alia, “denying
his leave of absence request; requiring him to work on light duty while other
employees were not required to work; and subjecting him to harassment and
assault by his supervisors.” Holloway v. Dep’t of Veterans Affairs, 244 F. App’x
566, 2007 WL 2116475, at *1 (5th Cir. July 23, 2007) (per curiam) (unpublished).
Of particular relevance to this appeal, Holloway alleged that in 1998, his
supervisor, Charles Warner (“Warner”), stated to two of Holloway’s co-workers
that Holloway was “creating problems by filing EEO complaints.” Defendants
moved for summary judgment, and the district court granted their motion and
dismissed all of Holloway’s claims. Holloway appealed only the dismissal of his
“non-removal, non-termination retaliation claim.” Id.
      While Holloway’s appeal was pending, the Supreme Court decided
Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006), in
which it “rejected the approach taken by several circuits, including this one, for
determining adverse employment actions in retaliation cases.” Holloway, 2007

                                        2
                                  No. 08-20212

WL 2116475, at *1.      Accordingly, we vacated the district court’s grant of
summary judgment and remanded Holloway’s case for consideration in light of
Burlington Northern. Id. at *2.
      Following our remand, Defendants again moved for summary judgment.
In response, Holloway abandoned all remaining allegations of retaliation except
for that relating to Warner’s 1998 statement that Holloway was “creating
problems by filing EEO complaints.” See Holloway v. Dep’t of Veterans Affairs,
Civil Action No. H-04-1395, 2008 WL 624708, at *1 (S.D. Tex. Mar. 5, 2008).
Defendants asserted that Holloway failed to establish a prima facie case of
retaliation with regard to this remaining allegation. Specifically, they argued
that Holloway failed to establish the second element of his prima facie case: that
Warner’s statement constituted an “adverse employment action.” The district
court granted Defendants’ motion on this ground and dismissed the case with
prejudice. Holloway timely appealed.
            II. JURISDICTION AND STANDARD OF REVIEW
      We have jurisdiction over the district court’s award of summary judgment
pursuant to 28 U.S.C. § 1291.
      We review de novo a district court’s award of summary judgment. Nichols
v. Enterasys Networks, Inc., 495 F.3d 185, 188 (5th Cir. 2007). Summary
judgment is proper when “the pleadings, the discovery and disclosure materials
on file, and any affidavits show that there is no genuine issue as to any material
fact and that the movant is entitled to judgment as a matter of law.” FED. R.
CIV. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “A genuine
issue of material fact exists when the evidence is such that a reasonable jury
could return a verdict for the non-moving party.” Gates v. Tex. Dep’t of Protective
& Regulatory Servs., 537 F.3d 404, 417 (5th Cir. 2008) (citing Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). “Where the non-moving party
fails to establish ‘the existence of an element essential to that party’s case, and

                                        3
                                  No. 08-20212

on which that party will bear the burden of proof at trial,’ no genuine issue of
material fact can exist.” Nichols, 495 F.3d at 188 (quoting Celotex Corp., 477
U.S. at 322-23). In reviewing the motion, we “must view the facts in the light
most favorable to the non-moving party and draw all reasonable inferences in
its favor.” Coury v. Moss, 529 F.3d 579, 584 (5th Cir. 2008).
                               III. DISCUSSION
       Holloway contends on appeal that Warner’s 1998 statement to two of
Holloway’s co-workers that Holloway was “creating problems by filing EEO
complaints” constitutes a retaliatory statement actionable under Title VII’s anti-
retaliation provision, 42 U.S.C. § 2000e-3(a). 42 U.S.C. § 2000e-3(a) provides
that
       [i]t shall be an unlawful employment practice for an employer to
       discriminate against any of his employees . . . because he has
       opposed any practice made an unlawful employment practice by this
       subchapter, or because he has made a charge, testified, assisted, or
       participated in any manner in an investigation, proceeding, or
       hearing under this subchapter.
Claims under Title VII are governed by the three-step test established in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). See LeMaire v.
La. Dep’t of Transp. & Dev., 480 F.3d 383, 388 (5th Cir. 2007). Under this test,
an employee alleging a retaliation claim bears the initial burden of establishing
a prima face case of retaliation. LeMaire, 480 F.3d at 388; see McDonnell
Douglas, 411 U.S. at 802. To establish her prima facie case, an employee must
demonstrate that “(1) she participated in an activity protected by Title VII;
(2) her employer took an adverse employment action against her; and (3) a
causal connection exists between the protected activity and the materially
adverse action.” Aryain v. Wal-Mart Stores Tex. LP, 534 F.3d 473, 484 (5th Cir.
2008); accord Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 348 (5th Cir.
2007). Only the second element is at issue in this case.


                                        4
                                        No. 08-20212

          The Supreme Court recently clarified the requirements for the second
element of an employee’s prima facie case of retaliation. In Burlington Northern,
the Court held that “a plaintiff must show that a reasonable employee would
have found the challenged action materially adverse, which in this context
means it well might have dissuaded a reasonable worker from making or
supporting a charge of discrimination.” 548 U.S. at 68 (internal quotation marks
omitted). The Court explained that “[t]he anti-retaliation provision protects an
individual not from all retaliation, but from retaliation that produces an injury
or harm,” id. at 67, and noted that it “speak[s] of material adversity because . . .
it is important to separate significant from trivial harms,” id. at 68. In other
words, it explained, “Title VII . . . does not set forth ‘a general civility code for the
American workplace.’” Id. (quoting Oncale v. Sundowner Offshore Servs., Inc.,
523 U.S. 75, 80 (1998)). Notably, the Court cautioned that “[a]n employee’s
decision to report discriminatory behavior cannot immunize that employee from
those petty slights or minor annoyances that often take place at work and that
all employees experience.” Id.
          Holloway’s sole remaining allegation is that Warner’s statement to two of
Holloway’s co-workers that Holloway was “creating problems by filing EEO
complaints” rises to the level of an adverse employment action under the
standard enunciated in Burlington Northern.2 Since Burlington Northern, this
court and others have considered various factors that weigh against a finding of
“material adversity.” Among these, we have explained that when a supervisor
makes a challenged comment not to the plaintiff-employee but to his co-workers,
the comment’s hearsay nature “militates against a finding of materiality.”
Smith v. Harvey, 265 F. App’x 197, 201 (5th Cir. 2008) (per curiam)
(unpublished) (citing Thomas v. iStar Fin., Inc., 438 F. Supp. 2d 348, 366

          2
              We assume, arguendo, that the challenged statement constitutes an employment
action.

                                               5
                                  No. 08-20212

(S.D.N.Y. 2006)). The fact that the supervisor made the comment on only one
occasion and that no adverse consequences followed therefrom further weighs
against a finding of material adversity. Id. Although we recognize that this
unpublished decision does not bind us, we find it instructive and agree with its
reasoning.
      Moreover, a supervisor’s mention, or even criticism, of an employee’s EEO
complaints does not itself constitute such “material adversity” that would
“dissuade a reasonable worker from making or supporting a charge of
discrimination.” See Burlington Northern, 548 U.S. at 68. For example, in Jones
v. Johanns, 264 F. App’x 463 (6th Cir. 2007), the Sixth Circuit held that a
supervisor’s letter to the plaintiff warning him to stop discussing his EEO
complaints during business hours and threatening “official disciplinary action”
if he failed to stop did not, “as a matter of law, constitute materially adverse
actions,” id. at 469. Indeed, courts have even held that a supervisor’s statements
to a plaintiff’s co-workers that he would “get rid of” the plaintiff because he was
“creating problems,” Thomas, 438 F. Supp. 2d at 366, and “[b]admouthing or
being mean to an employee within the workplace,” Roldan v. Chertoff,
No. 04CV2515, 2006 WL 4632503, at *12 (S.D. Cal. Oct. 19, 2006), are not
materially adverse actions capable of sustaining a retaliation claim.
      In the instant case, Warner made only one reference to Holloway’s EEO
complaints, and he directed the comment not to Holloway, but to two of
Holloway’s co-workers. Warner did not threaten disciplinary action, did not
evince hostility toward Holloway, and did not suggest that Holloway drop his
complaints or refrain from filing further complaints. Contrary to Holloway’s
assertion, Warner’s statement is entirely distinguishable from those at issue in
Fallon v. Potter, 277 F. App’x 422 (5th Cir. 2008) (per curiam) (unpublished), in
which the plaintiff’s supervisor directly threatened disciplinary action if the
plaintiff did not withdraw his EEO complaint, id. at 428. The statements

                                        6
                                  No. 08-20212

challenged in Fallon—“You just keep filing those EEO complaints and I promise
you one thing—there won’t be a person in this post office to testify against me”;
“You need to call her [an EEOC officer] and talk to her so you can drop this
EEO”; “You need to tell her you don’t need redress . . . cause you’re canceling the
EEO complaint”; and “You’ll never have anyone in this post office stand up for
you. If you continue to file these charges, I’ll show you what you’re up against,”
id. (alteration and omission in original)—bear no resemblance to Warner’s
comment here. Warner’s single, non-threatening statement did not “create[] a
situation so unbearable or bleak that a reasonable employee would have been
dissuaded from complaining about discrimination.” See Higgins v. Gonzales, 481
F.3d 578, 590 (8th Cir. 2007).
      Accordingly, the district court correctly found that Warner’s statement was
insufficient to constitute a “materially adverse” employment action and that,
therefore, Holloway failed to establish a prima facie case of retaliation.
                              IV. CONCLUSION
      For the foregoing reasons, we AFFIRM the district court’s award of
summary judgment to Defendants.
      AFFIRMED.




                                        7
