                                                                 United States Court of Appeals
                                                                          Fifth Circuit
                                                                        F I L E D
                      UNITED STATES COURT OF APPEALS
                           FOR THE FIFTH CIRCUIT                       February 16, 2007

                            _______________________                  Charles R. Fulbruge III
                                                                             Clerk
                                  No. 06-20287
                                Summary Calendar
                            _______________________

                                 LAXMI SARWAL,

                                                       Plaintiff-Appellant,

                                      versus

                       ANTHONY PRINCIPI, SECRETARY,
                     DEPARTMENT OF VETERANS AFFAIRS,

                                                           Defendant-Appellee.


            On Appeal from the United States District Court
         for the Southern District of Texas, Houston Division
                             No. H-04-1942


Before JONES, Chief Judge, and KING and DAVIS, Circuit Judges.

PER CURIAM:*

            Laxmi    Sarwal    appeals   the    district    court’s     grant    of

summary judgment to defendant Anthony Principi on retaliation

claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C.

§ 2000e et. seq.          Sarwal fails to present a prima facie case of

reprisal, and we therefore AFFIRM.

                                I.    BACKGROUND

            Sarwal worked as a Staff Assistant in the Women’s Health

Center    within    the    Veterans   Affairs   Medical     Center    (“VA”)     in



     *
            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opinion should not be published and is not precedent except under the limited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.
Houston, Texas, performing primarily administrative duties.                 In

November 2000, Sarwal filed a discrimination complaint with the VA

Office of Employment Discrimination, which she amended in March

2001, August 2001, and May 2002.           In her initial charge and the

subsequent amendments, Sarwal alleged twelve incidents or grounds

on which her employer discriminated against her on the basis of

race, national origin, sex, and color, and improperly retaliated

against her for prior EEO filings.

          On   August   27,   2002,       the   VA    Office    of   Employment

Discrimination issued a Final Agency Decision dismissing Sarwal’s

first claim for untimeliness and failure to state a claim and

dismissing the remainder of her claims for lack of evidence of

discrimination.    Sarwal     appealed     to   the    United    States   Equal

Employment Opportunity Commission (“EEOC”).               On appeal, Sarwal

focused on her claim that she was improperly issued a letter of

counseling for failing to comply with the VA’s dress code.

          On February 14, 2004, the EEOC determined that Sarwal had

presented a prima facie case of reprisal and ordered the VA to

remove all documentation of the letter of counseling from Sarwal’s

personnel file.    However, the EEOC also determined that Sarwal

failed to establish that the VA discriminated against her based on

race, national origin, sex, or color.

          On May 13, 2004, Sarwal filed the present action in

federal court, focusing on the letter of counseling regarding the

dress code and on a claim that the VA improperly retaliated against

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her by denying her a monetary incentive award.     On March 2, 2006,

the district court granted the defendant’s motion for summary

judgment on both counts.   The court found that Sarwal was unable to

establish that the VA took an “adverse employment action” against

her, and therefore she did not present a prima facie case of

retaliation.   Sarwal filed a timely appeal before this court.

                           II.   DISCUSSION

          We review a district court’s grant of summary judgment de

novo, applying the same standards as the trial court.     MacLachlan

v. ExxonMobil Corp., 350 F.3d 472, 478 (5th Cir. 2003).      A court

should grant summary judgment when “the pleadings, depositions,

answers to interrogatories, and admissions on file, together with

the affidavits, if any, show that there is no genuine issue as to

any material fact and that the moving party is entitled to a

judgment as a matter of law.”    FED. R. CIV. P. 56(c).

          Courts analyze a motion for summary judgment in Title VII

retaliation claims using the McDonnell Douglas three-step, burden-

shifting framework. Hockman v. Westward Commc’ns, L.L.C., 407 F.3d

317, 330 (5th Cir. 2004); see McDonnell Douglas Corp. v. Green,

411 U.S. 792, 802-03, 93 S. Ct. 1817, 1824 (1973).        Under this

framework, Sarwal first must establish a prima facie case by

presenting evidence that: (1) she engaged in protected conduct,

(2) she was thereafter subjected to an adverse employment action,

and (3) the adverse employment action was taken in response to her


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protected conduct.   Hockman, 407 F.3d at 330.          The burden then

shifts to the defendant to articulate a legitimate, nonretaliatory

reason for the adverse employment action.       Id.   Once such a reason

is given, Sarwal must present evidence showing that the proffered

rationale is pretextual.   Id.

          The district court determined that Sarwal failed to

present a prima facie case of retaliation because the actions taken

by the defendant, placing the counseling letter in her file and

refusing the monetary incentive award, did not constitute “ultimate

employment decisions.”   See Mattern v. Eastman Kodak Co., 104 F.3d

707-08 (5th Cir.), cert. denied, 522 U.S. 932, 118 S. Ct. 336

(1997).   Sarwal argues that this contravenes the Supreme Court’s

recent ruling in Burlington N. & Santa Fe Ry. Co. v. White, __ U.S.

__,   126 S. Ct. 2405 (2006), in which the Court rejected the

“ultimate employment decision” framework and held that a plaintiff

need only “show that a reasonable employee would have found the

challenged action materially adverse” in order to state a prima

facie case for retaliation.      Id. at 2415.

          We need not determine whether the actions asserted by

Sarwal meet this new standard for an adverse employment action as

her claims fail on other grounds.       With respect to the counseling

letter, Sarwal is unable to establish that it was ever put into her

personnel folder, and she presented no summary judgment evidence




                                    4
that the letter had any disciplinary effect.1                As such, it cannot

be considered an adverse employment action, and the district court

properly granted summary judgment.

            As to the incentive award, the record is devoid of any

evidence that       the     alleged    discriminating      individual,      Sarwal’s

supervisor Smith, participated in the decision to refuse the award.

In fact, the evidence shows that Smith recommended that Sarwal

receive    the     award;     her     authority,    however,      was    limited   to

nominating    an    individual,        and   Dr.   Ella   Curry   made    the   final

decision. Contrary to Sarwal’s claim that Smith retaliated against

her, the defendants presented an email dated August 23, 2000, in

which the Administrative Officer for the VA Chief of Staff informed

Smith that Curry had denied the award to Sarwal.                    Sarwal argues

that in her deposition, Curry could not recall denying the award.

This deposition, given five years after the fact, is insufficient

to establish a genuine issue of material fact as to whether Smith

discriminated against Sarwal in denying the award.                  See Matsushita

Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87,

106 S. Ct. 1348, 1356 (1986) (“When the moving party has carried

its [initial] burden ... its opponent must do more than simply show

that there is some metaphysical doubt as to the material facts....



      1
            Although the EEOC did order the letter removed from Sarwal’s
personnel file, Sarwal presented no evidence to this court or the district court
that the letter was ever there, and the EEOC’s finding is not entitled to
deference. Smith specifically denied that the letter was placed in Sarwal’s file,
and Sarwal admitted that she had never actually seen the file.

                                             5
[T]he nonmoving party must come forward with specific facts showing

that there is a genuine issue for trial”) (internal citations and

quotation marks omitted) (emphasis in original).               As there is no

evidence that Smith took any adverse action regarding the award,

let alone evidence that she did so with a discriminatory intent,

the   district   court   properly   granted       summary   judgment   to     the

defendant.

                            III.    CONCLUSION

           Sarwal   is   unable    to   present    a   prima   facie   case    of

retaliation, as she cannot produce evidence that the defendants

took any adverse employment action against her.                 The district

court’s grant of summary judgment is AFFIRMED.




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