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

                                                  FILED
                                                                         December 14, 2009

                                     No. 08-60985                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



RENA MCGARRY,

                                                   Plaintiff-Appellant
v.

UNIVERSITY OF MISSISSIPPI MEDICAL CENTER,

                                                   Defendant-Appellee.




     Appeal from the United States District Court for the Southern District of
                         Mississippi, Jackson Division
                           USDC No. 3:05-CV-00792


Before JOLLY, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
        This appeal arises from the district court’s grant of summary judgment in
favor of the appellee, University of Mississippi Medical Center, on all of the
appellant, Rena McGarry’s, claims brought under Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e, the Age Discrimination in Employment Act
(ADEA) of 1967, 29 U.S.C. § 621, and state law. We have jurisdiction pursuant
to 28 U.S.C. § 1291. For the following reasons, 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                      No. 08-60985

             I. FACTUAL AND PROCEDURAL BACKGROUND
       In June of 2004, the appellant was working for the appellee as a staff
nurse in the Neurosurgical Intensive Care Unit (NSICU) when one of her
patients, Johnny Gilmore, allegedly threatened to kill her and accused her of
physically assaulting and verbally abusing him.             Gilmore claimed that the
appellant had slapped him, cursed at him, broke his laptop computer, and
rummaged through his personal items.                Pursuant to hospital policy, the
appellant was suspended without pay pending completion of an investigation.
The internal investigation yielded insufficient evidence to substantiate Gilmore’s
allegations. As a result, the appellant was reinstated as a staff nurse with full
back pay. The appellee decided to transfer the appellant from the NSICU, where
Gilmore remained a patient, to the 4 South neurosurgical floor.                        The
uncontradicted summary judgment evidence indicates that the appellant’s new
position had the same job title, benefits, and hours as her position with the
NSICU. In addition, the appellant’s salary would be no lower than what she had
received in her former position.1 The appellant never reported to work on 4
South; instead she tendered her resignation.
       After obtaining a right to sue letter from the Equal Employment
Opportunity Commission (EEOC), the appellant filed the instant suit charging
the appellee with race discrimination, sex discrimination, retaliation,
maintaining a hostile work environment and constructive discharge under Title
VII; age discrimination and retaliation under ADEA; and state law claims of
constructive and wrongful discharge.             The appellant sought equitable and
monetary relief, including back pay, actual and compensatory damages,
attorney’s fees, and reinstatement to her former position in the NSICU. After
discovery was complete, the appellee filed a “Motion to Dismiss/Motion for


       1
       The appellee claims that the appellant would have received a two-dollar hourly raise.
The appellant contends that she was never informed of this raise.

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Summary Judgment,” which the district court treated as a motion for summary
judgment. The district court ruled that the appellant’s claims under ADEA and
state law were barred by the Eleventh Amendment and that appellant had failed
to produce any competent evidence to refute the appellee’s claim that it was
entitled to summary judgment on her Title VII claims.
                                 II. ANALYSIS
      We review a grant of summary judgment de novo, applying the same
standards as the district court. Fierros v. Tex. Dep’t of Health, 274 F.3d 187, 190
(5th Cir. 2001). Under Federal Rule of Civil Procedure 56(c), a court may grant
summary judgment where the evidence reveals no genuine dispute regarding
any material fact and the moving party is entitled to judgment as a matter of
law. The rule “mandates the entry of summary judgment, after adequate time
for discovery . . . against a party who fails to make a showing sufficient to
establish the existence of an element essential to that party’s case, and on which
that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986). Once the moving party has carried its summary judgment
burden, the opposing party must set forth specific facts showing a genuine issue
for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Allegations
or affidavits setting forth merely conclusory facts and conclusions of law are
insufficient. Galindo v. Precision Amer. Corp., 754 F.2d 1212, 1216 (5th Cir.
1985). We review a district court’s evidentiary decisions under an abuse of
discretion standard. Celestine v. Petroleos de Venezuella SA, 266 F.3d 343, 349
(5th Cir. 2001).
A. ADEA and State Law Claims
      It is well-established that the Eleventh Amendment bars “an individual
from suing a state in federal court unless the state consents to suit or Congress
has clearly and validly abrogated the state’s sovereign immunity.” Perez v.
Region 20 Educ. Serv. Ctr., 307 F.3d 318, 326 (5th Cir. 2002) (citations omitted).

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The Eleventh Amendment also bars state law claims in federal court. Pennhurst
State Sch. & Hosp. v. Halderman, 465 U.S. 89, 120-21 (1984). The scope of this
immunity “extends to any state agency or entity deemed an alter ego or arm of
the state.” Perez, 307 F.3d at 326 (internal quotation marks omitted). The
appellee, as an arm of the University of Mississippi, is an agency of the state and
entitled to Eleventh Amendment immunity absent waiver or abrogation. See
Sullivan v. Univ. of Miss. Med. Ctr., 617 F. Supp. 554, 557 (S.D. Miss. 1985); see
also Miss. Code Ann. § 37-115-25; Jagnandan v. Giles, 538 F.2d 1166, 1174 (5th
Cir. 1976).
      As a preliminary matter, we observe that Congress did not abrogate the
states’ sovereign immunity with respect to the ADEA. Kimel v. Fla. Bd. of
Regents, 528 U.S. 62, 91 (2000). We also note that the state of Mississippi
expressly preserved its sovereign immunity to suit in federal court when it
enacted the Mississippi Tort Claims Act.           Miss. Code. Ann. § 11-46-5(4)
(“Nothing contained in this chapter shall be construed to waive the immunity of
the state from suit in federal courts . . . .”).
      The appellant first claims that the district court erred when it held that
Mississippi had not waived its sovereign immunity by accepting federal funding.
Under 42 U.S.C. § 2000d-7(a)(1), a state does not enjoy sovereign immunity from
suit in federal court for violations “of any . . . [f]ederal statute prohibiting
discrimination by recipients of [f]ederal financial assistance.” We have already
considered and rejected the argument that the ADEA “is a [f]ederal statue
prohibiting discrimination by recipients of [f]ederal assistance.” Sullivan v.
Univ. of Tex. Health Sci. Ctr. at Houston Dental Branch, 217 Fed. App’x 391, 395
(5th Cir. 2007) (unpublished). “The ADEA prohibits age discrimination by
‘employers,’ not by those who receive federal financial assistance.” Id. The
appellant cites to cases from other circuits that address the issue of waiver



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under the Rehabilitation Act, 29 U.S.C. § 794, and Title IX, 20 U.S.C. § 1681.
These decisions have no relevance to the current case.
      The appellant next argues that she is still entitled to sue for injunctive
relief even if her claims for monetary damages are barred. This assertion is
equally misplaced, as the jurisdictional bar imposed by the Eleventh
Amendment applies “regardless of the nature of the relief sought.” Pennhurst,
465 U.S. at 100. The only manner in which the appellant could obtain injunctive
relief is under the doctrine of Ex Parte Young, 209 U.S. 123 (1908). In order for
Ex Parte Young to apply, however, the appellant must seek to enjoin a state
official from violating federal law. See Ysleta Del Sur Pueblo v. Laney, 199 F.3d
281, 285–86 (5th Cir. 2000). In the instant case, the appellant has not sued any
state official. Therefore, her state law and ADEA claims are barred by the
Eleventh Amendment.
B. Title VII Claims
      Title VII prohibits discrimination in employment decisions on the basis of
“race, color, religion, sex or national origin.” 42 U.S.C. § 2000e-2(a)(1). Absent
direct proof of discrimination, a plaintiff may assemble proof via circumstantial
evidence using the framework set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). “First, the plaintiff must establish a prima facie case of
discrimination.    Second, the employer must respond with a legitimate,
nondiscriminatory reason for its decision. This 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) (internal quotation
marks and citations omitted). If the employer meets its burden of production,
the plaintiff must then offer sufficient evidence to create a genuine issue of
material fact as to whether the nondiscriminatory reason is a pretext or is only
one of the reasons for the employer’s conduct and the plaintiff’s protected



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characteristic is another motivating factor. Burrell v. Dr. Pepper/Seven Up
Bottling Group, Inc., 482 F.3d 408, 412 (5th Cir. 2007).
      To establish a prima facie case of discrimination, a plaintiff must show
that she is a member of a protected class; is qualified for the job; suffered an
adverse employment action by the employer; and was either replaced by
someone outside her protected group or received less favorable treatment than
a similarly situated individual outside the protected group. McCoy v. City of
Shreveport, 492 F.3d 551, 556 (5th Cir. 2007). “In disparate treatment cases, the
plaintiff-employee must show nearly identical circumstances for employees to be
considered similarly situated.” Berquist v. Wash. Mut. Bank, 500 F.3d 344, 353
(5th Cir. 2007) (internal quotation marks and citations omitted).
      The appellant challenges the district court’s holding that she failed to
establish pretext as to her racial and gender discrimination claims. The district
court determined that the appellee had offered a legitimate nondiscriminatory
reason for transferring the appellant to 4 South: its desire to separate the
appellant from the patient who had accused her of physically assaulting him.
The appellant does not contest that this reason is both legitimate and
nondiscriminatory. Rather, she argues that this reason was pretextual because
Gilmore had complained about other nurses who were not subsequently
transferred.   However, the uncontradicted summary judgment evidence
indicated that Gilmore had not accused these nurses of physical abuse.
Therefore, the appellant has failed to present summary judgment evidence
demonstrating that other nurses were not transferred under “nearly identical
circumstances.” See Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1090 (5th
Cir. 1995). The district court correctly held that the appellee was entitled to
summary judgment on the appellant’s discrimination claims.
      The appellant also contests the district court’s grant of summary judgment
on appellant’s claim of unlawful retaliation. “There are three elements to a

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prima facie case of retaliation under Title VII: (1) that the plaintiff engaged in
activity protected by Title VII, (2) that an adverse employment action occurred,
and (3) that a causal link existed between the protected activity and the adverse
action.” Raggs v. Miss. Power & Light Co., 278 F.3d 463, 471 (5th Cir. 2002). An
employee has engaged in protected activity if she has either “(1) opposed any
practice made an unlawful employment practice by Title VII or (2) made a
charge, testified, assisted, or participated in any manner in an investigation,
proceeding, or hearing under Title VII.” Haynes v. Pennzoil Co., 207 F.3d 296,
299 (5th Cir. 2000) (quoting 42 U.S.C. § 2000e-3(a)). The district court
determined that the appellant had not established a primae facie case because
she did not engage in protected activity. On appeal, the appellant argues that
she reported other nurses for workplace violations such as riding an IV pole
down a hallway. Reporting this type of activity, however, does not fall under any
category of protected behavior outlined in Title VII. See 42 U.S.C. § 2000e3-(a).
Therefore, the district court did not err in granting summary judgment to the
appellee on the appellant’s unlawful retaliation claim.
      The district court also dismissed appellant’s claim of a hostile work
environment under Title VII. To establish a hostile work environment claim, a
plaintiff must demonstrate that
      (1) she is member of a protected group; (2) she was the victim of
      uninvited . . . harassment; (3) the harassment was based on [a
      protected characteristic]; (4) the harassment affected a term,
      condition, or privilege of [her] employment; and (5) her employer
      knew or should have known of the harassment and failed to take
      prompt remedial action

Harvill v Westward Commc’ns, L.L.C., 433 F.3d 428, 434 (5th Cir. 2005). In
order for harassment to affect a term, condition or privilege of employment, it
must be “sufficiently severe or pervasive to alter the conditions of the victim’s
employment and create an abusive working environment.” Harris v. Forklift


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Sys., 510 U.S. 17, 21 (1993) (internal quotation marks and citation omitted).
“Title VII . . . does not set forth a general civility code for the American
workplace.” Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 54, 68
(2006) (internal quotation marks and citation omitted).
      The appellant maintains that she was subject to a hostile work
environment as a result of the internal investigation and her transfer to 4 South.
The district court held that neither the investigation nor the transfer were
connected in any way to the appellant’s membership in any protected class. It
also held that the two-week investigation and the transfer were not sufficiently
severe or pervasive to survive summary judgment. See, e.g., Shepherd v.
Comptroller of Pub. Accounts, 168 F.3d 871, 872–74 (5th Cir. 1999) (stating that
offensive and boorish conduct spanning over a year did not qualify as severe or
pervasive). On appeal, the appellant argues that she was “humiliated” by the
appellee’s actions. She fails to demonstrate, however, that she presented any
evidence at summary judgment indicating that the investigation and transfer
were connected in any way to her membership in a protected class and were
sufficiently severe or pervasive to create a hostile work environment.
      Finally, we address the district court’s entry of summary judgment on
appellant’s claim of constructive discharge. To establish constructive discharge,
a plaintiff must demonstrate that “‘working conditions were so intolerable that
a reasonable employee would feel compelled to resign.’” Brown v. Kinney Shoe
Corp., 237 F.3d 556, 566 (5th Cir. 2001) (quoting Faruki v. Parsons, 123 F.3d
315, 319 (5th Cir. 1997)). “Constructive discharge requires a greater degree of
harassment than that required by a hostile environment claim.” Id. (citation
omitted). In evaluating a claim of constructive discharge, a court may consider
factors such as a downgrade in salary, assignment to menial work, or demotion.
Id. On appeal, the appellant argues that she was humiliated by her suspension
and the false accusation of assault on a patient. The false accusation, however,

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came from Gilmore, not the appellee. Furthermore, the appellee was bound
under state law and hospital protocol to investigate the allegations.      The
appellant also argues that she was not allowed to return to NSICU, which was
her area of expertise. However, “constructive discharge cannot be based upon
the employee’s subjective preferences for one position over another.” Jett v.
Dallas Indep. Sch. Dist., 798 F.2d 748, 755 (5th Cir. 1986). The district court
correctly held that the appellant’s claim of constructive discharge fails as a
matter of law.
      For the foregoing reasons, the judgment of the district court is hereby
AFFIRMED.




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