     Case: 14-10568         Document: 00512976424      Page: 1    Date Filed: 03/20/2015




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT


                                        No. 14-10568                     United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
RICHARD HIGBIE,                                                           March 20, 2015
                                                                           Lyle W. Cayce
                 Plaintiff–Appellant,                                           Clerk

v.

JOHN KERRY, in his official capacity as Secretary of State,

                 Defendant–Appellee.




                     Appeal from the United States District Court
                          for the Northern District of Texas
                               USDC No. 3:11-CV-2636


Before SMITH, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
       Richard Higbie, a U.S. Department of State employee, sued for
retaliation under the Americans with Disabilities Act of 1990 (ADA), 1 Title VII
of the Civil Rights Act of 1964 (Title VII), 2 and the Rehabilitation Act of 1973. 3



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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   42 U.S.C. §§ 12101-213.
       2   42 U.S.C. §§ 2000e to 2000e-17.
       3   29 U.S.C. §§ 701-95o.
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The district court granted the Government’s motion for summary judgment.
We affirm.
                                       I
      Higbie was employed by the Department of State’s Bureau of Diplomatic
Security. He worked in the Dallas Resident Office, which operates under the
direction of the Houston Field Office. The Special Agent in Charge (SAC) and
the Assistant Special Agent in Charge (ASAC) head the Houston office. The
Resident Agent in Charge (RAC) heads the Dallas office.
      In 2001, Higbie filed an Equal Employment Opportunity (EEO)
complaint based on his efforts to take leave relating to his daughter’s illness.
The parties settled the complaint in July 2005. The settlement converted
Higbie’s foreign service position to a “Civil Service appointment as a criminal
investigator, GS-1811-13, Step 2.” A job description titles the GS-1811-13
position as a “Senior Criminal Investigator.” Higbie argues that because of his
complaint and his attempts to enforce the settlement’s provisions, he suffered
three retaliatory adverse employment actions.
      The first alleged adverse action occurred in late 2008. At that time,
Marian Cotter served as SAC and Paul Vallee served as ASAC in the Houston
office, and Laviris Stubblefield served as RAC in the Dallas office. Higbie’s job
description stated that he was to serve in relief of the RAC as the Acting RAC
“as directed or in the absence of the assigned [RAC].”        Vallee instructed
Stubblefield to implement a system in which Higbie, who held a non-
promotable civil service position, rotated the Acting RAC duty with promotable
foreign service agents. Vallee and Cotter explained that rotating the Acting
RAC duty would provide foreign service agents with leadership opportunities
that could enhance their credentials for a future potential promotion.
      The second alleged adverse action occurred in January 2011. By this
time, Cliff Taliaferro had replaced Stubblefield as RAC. On January 26, 2011,
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Taliaferro e-mailed Higbie with questions about Higbie’s job description. In
particular, Taliaferro had concerns about language in the job description
describing Higbie as a “senior” criminal investigator and as the “next senior
agent in the office.” Taliaferro further wrote: “So if the senior part of the title
is important to you we can leave it as is for now and reach out to HR for
guidance and let them make the call. But the wording about being the next
senior person in the office needs to be removed or changed.” Taliaferro later
explained that he ultimately “allowed Higbie to keep the ‘senior’ designations
he preferred, and this was reflected in the final version of the 2011 work
statement and also in subsequent work statements for later years.” Higbie has
not produced a work statement that incorporates the changes that Taliaferro
suggested in his January 2011 e-mail.
      The third alleged adverse action occurred in March 2011. Although the
building’s seventh floor housed the Dallas Resident Office, Higbie worked on
the building’s eleventh floor, which housed the Bureau of Consular Affairs’
Passport Agency. A 2011 job description designated Higbie as the Bureau of
Diplomatic Security’s liaison to the Dallas Passport Agency. In late March,
Taliaferro relocated Higbie to the seventh floor. Taliaferro stated in an e-mail
to Higbie that the reason for the move was to improve their working
relationship and denied that Higbie’s liaison duties were being removed.
However, Jason Banks, an agent in the Dallas Resident Office, stated that
after the move, Higbie was prohibited from speaking to Consular Affairs
employees.
      Higbie filed suit alleging violations of the ADA, Title VII, and the
Rehabilitation Act. The district court granted the Government’s motion for
summary judgment. It concluded that (1) the alleged adverse employment
actions were not materially adverse or that their existence was not established
by admissible evidence; (2) Higbie failed to demonstrate a causal link between
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protected activity and the alleged adverse actions needed to establish a prima
facie case; (3) the Government articulated legitimate, nonretaliatory reasons
for the alleged adverse actions; and (4) Higbie failed to show that the
Government’s proffered reasons were pretextual. Higbie appeals.
                                                 II
       We review the district court’s grant of summary judgment de novo. 4
Summary judgment is appropriate “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” 5 “A genuine issue of material fact exists if the evidence is
such that a reasonable jury could return a verdict for the non-moving party.” 6
We consider the evidence in the light most favorable to the non-moving party
and draw all reasonable inferences in that party’s favor. 7
                                                 III
       As an initial matter, the Government contends that Higbie’s sole cause
of action lies under the Rehabilitation Act.                  Title VII makes unlawful
discrimination based on “race, color, religion, sex, or national origin.” 8 Higbie
has not asserted any alleged discrimination based on one of Title VII’s
protected classes, 9 so Higbie’s suit cannot proceed under Title VII. Further,




       4   Avakian v. Citibank, N.A., 773 F.3d 647, 650 (5th Cir. 2014).
       5   FED. R. CIV. P. 56(a).
       6Pioneer Exploration, L.L.C. v. Steadfast Ins. Co., 767 F.3d 503, 511 (5th Cir. 2014)
(quoting Paz v. Brush Engineered Materials, Inc., 555 F.3d 383, 391 (5th Cir. 2009)).
       7   Id. (quoting Paz, 555 F.3d at 391).
       8   42 U.S.C. § 2000e-2(a)(1).
       9 See 42 U.S.C. § 2000e-3(a) (“It 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.”).
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the ADA excludes the United States from its definition of an employer, 10 so the
ADA is also unavailable to Higbie, a federal employee. 11 Therefore, Higbie’s
claim is cognizable only under the Rehabilitation Act.
                                                 IV
       A retaliation claim under the Rehabilitation Act based on circumstantial
evidence is analyzed under the McDonnell Douglas 12 burden-shifting
framework. 13         First, a plaintiff must establish a prima facie case of
retaliation. 14 To make out a prima facie case, a plaintiff must establish that
“(1) he participated in an activity protected by [the Rehabilitation Act]; (2) his
employer took an adverse employment action against him; and (3) a causal
connection exists between the protected activity and the adverse employment
action.” 15     Second, if the plaintiff meets his burden, the employer must
“articulate a legitimate, . . . nonretaliatory reason for its employment action.” 16
Finally, “[i]f the employer meets its burden[,] . . . the plaintiff then bears the
ultimate burden of proving that the employer’s proffered reason is not true but
instead is a pretext for the real . . . retaliatory purpose.” 17
       Higbie’s claim fails because he cannot establish a prima facie case. He
has failed to create a fact dispute as to whether he suffered an adverse
employment action. An adverse employment action is one that “a reasonable



       10   42 U.S.C. § 12111(5)(B)(i).
       11   See Henrickson v. Potter, 327 F.3d 444, 447 (5th Cir. 2003).
       12   McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
       13   See McCoy v. City of Shreveport, 492 F.3d 551, 556-57 (5th Cir. 2007) (per curiam).
       14   McCoy, 492 F.3d at 556-57.
       15Id. (citing Banks v. E. Baton Rouge Parish Sch. Bd., 320 F.3d 570, 575 (5th Cir.
2003) and Gee v. Principi, 289 F.3d 342, 345 (5th Cir. 2002))
       16   Id. at 557 (citing Gee, 289 F.3d at 345).
       17   Id. (citing Russell v. McKinney Hosp. Venture, 235 F.3d 219, 222 (5th Cir. 2000)).
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employee would have found . . . materially adverse, which in this context means
it well might have dissuaded a reasonable worker from making or supporting
a charge of discrimination.” 18 This standard is expressed in “general terms
because the significance of any given act of retaliation will often depend upon
the particular circumstances. Context matters.” 19
                                            A
      The first alleged adverse action occurred when Higbie’s Acting RAC
duties were modified. Higbie asserts that he was completely barred from
serving as Acting RAC. However, he only points to evidence showing that the
Acting RAC position switched to a rotation system.
      The district court observed that Higbie’s job description stated that he
“was to act as the [RAC] as directed or in the absence of the assigned [RAC].”
Based on this language, the district court concluded that no evidence supported
Higbie’s assertion that he was automatically the Acting RAC when the actual
RAC was absent. But viewing this language in the light most favorable to
Higbie, Higbie was to serve as Acting RAC in two distinct scenarios—(1) each
time the RAC was absent and (2) at any other time he was directed to do so.
Therefore, at the summary judgment stage, we must assume that Higbie was
the sole Acting RAC before the rotation system was expressly implemented.
      The Supreme Court has explained that the “reassignment of job duties
is not automatically actionable.” 20 “Whether a particular reassignment is
materially adverse depends upon the circumstances of the particular case, and




      18 Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (quoting Rochon
v. Gonzales, 438 F.3d 1211, 1219 (D.C. Cir. 2006)) (internal quotation marks omitted).
      19   Id. at 69.
      20   Id. at 71.
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should be judged from the perspective of a reasonable person in the plaintiff’s
position, considering all the circumstances.” 21
       Higbie argues that the Second Circuit’s decision in Kessler v. Westchester
County Department of Social Services 22 establishes that the move to the
rotation system was materially adverse. In Kessler, the plaintiff suffered a
materially adverse action when he kept his job title but was no longer “allowed
to perform the broad discretionary and managerial functions of [his] position,
no one would report to him, and he would be forced to do work normally
performed by clerical and lower-level personnel.” 23 The District of Columbia
Circuit has similarly held that a “complete loss of supervisory responsibilities”
that were a regular part of the plaintiff’s job could constitute a materially
adverse action. 24
       Higbie also points to our recent decision in Thompson v. City of Waco,
Texas, a Title VII discrimination case. 25 Thompson, a police detective, was
prohibited from “working undercover, searching for and logging evidence,
serving as an evidence officer, acting as an affiant, and being a lead
investigator.” 26 Reviewing a Rule 12(b)(6) motion to dismiss, we accepted



       21 Id. (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998))
(internal quotation marks omitted).
       22   461 F.3d 199, 209-10 (2d Cir. 2006).
       23   Id.
       24 See Geleta v. Gray, 645 F.3d 408, 412 (D.C. Cir. 2011) (holding that a fact issue
existed as to material adversity when, among other things, the plaintiff went from
supervising twenty employees to supervising none); see also Stewart v. Ashcroft, 352 F.3d
422, 426-27 (D.C. Cir. 2003) (holding that a failure to promote attorney to a position in which
he “actively and directly supervises the Senior Litigation Counsel” was materially adverse);
Burke v. Gould, 286 F.3d 513, 515, 521-22 (D.C. Cir. 2002) (holding that removal of
supervisory duties from a “supervisory computer systems analyst” raised a fact dispute
sufficient to overcome a motion for summary judgment).
       25   764 F.3d 500, 502 (5th Cir. 2014).
       26   Id. at 502, 506.
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Thompson’s allegations that these responsibilities were “integral and material
responsibilities of a detective.” 27 We distinguished Thompson’s case from Mota
v. University of Texas Houston Heath Science Center. 28 In Mota, “the university
limited Mota’s ability to serve as principal investigator only ‘on certain
projects,’ and there was no indication that being a principal investigator on
those projects was a significant part of his job as a visiting professor.” 29 We
placed particular importance on Thompson’s assertion that, unlike in Mota,
“he lost his ability to perform his essential job functions in all investigations,
not just on certain projects.” 30 Accordingly, we concluded that Thompson
alleged sufficient facts to establish an adverse employment action. 31
      In contrast to the plaintiffs in Kessler and Thompson, Higbie only had an
intermittent supervisory role as an Acting RAC, which was reduced, not
eliminated, and none of his regular duties as a senior criminal investigator
changed as a result of the rotation system. Also, Higbie has put forth no
evidence that he gained any significant prestige or any benefits from serving
as Acting RAC. 32 Therefore, no fact dispute exists as to whether implementing
a rotation system for the Acting RAC position was materially adverse.
                                                B
      Higbie next contends that Taliaferro stripped him of his “senior criminal
investigator” and “next senior agent” titles. In a declaration, Taliaferro stated
that although he questioned Higbie’s titles in an e-mail, he never actually
stripped them:


      27   Id. at 506 (internal quotation marks omitted).
      28   Id.; Mota v. Univ. of Tex. Hous. Health Sci. Ctr., 261 F.3d 512 (5th Cir. 2001).
      29   Thompson, 764 F.3d at 506 (quoting Mota, 261 F.3d at 521).
      30   Id.
      31   See id.
      32   See Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 71 (2006).
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      [U]pon hearing Higbie’s understanding of these matters, I did not
      direct that Higbie’s references to being a “senior” criminal
      investigator or agent be removed from his work statement. . . .
      Instead, I placed a note in a preliminary version of Higbie’s 2011
      work statement about seeking guidance from Human Resources
      about Higbie’s exact title and designation. After conferring with
      officials in the Houston Field Office, I allowed Higbie to keep the
      “senior” designations he preferred, and this was reflected in the
      final version of the 2011 work statement and also in subsequent
      work statements for later years.
Higbie only relies on Taliaferro’s initial e-mail that stated that the “next
senior” title needed to be changed. Higbie fails to point to evidence, such as a
work statement produced after the initial e-mail, showing that his title was
actually changed. Therefore, no fact issue exists as to whether Higbie’s title
was stripped.
                                       C
      Finally, Higbie argues that he suffered a materially adverse action when
Taliaferro stripped him of his duty as primary liaison to the Bureau of
Consular Affairs’ Passport Agency by moving Higbie’s desk from the eleventh
floor, which housed Consular Affairs, to the seventh, which housed the Dallas
Resident Office.
      Higbie contends that the deposition testimony of Jason Banks, a fellow
employee in the Dallas Resident Office, establishes that a materially adverse
action occurred. Banks stated that Taliaferro instructed Higbie “not to talk
with any of the [consular] affairs people anymore.” But Banks also testified
that he personally observed only the relocation itself; the rest of the
information Banks knew about the tensions between Higbie and Taliaferro was
“secondhand.” Accordingly, the district court excluded, as hearsay, Banks’s
statement that Higbie could no longer speak to Consular Affairs employees.
      In his brief, Higbie fails to acknowledge that the district court excluded
Banks’s statement as hearsay. The failure to challenge a district court’s ruling
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                                          No. 14-10568
excluding evidence precludes this court from relying on the excluded evidence
on appeal. 33 Higbie waived this issue by failing to raise it in his brief. 34
Furthermore, counsel’s efforts to address the hearsay issue at oral argument
were unpersuasive. He argued that the district court only determined that
part of Banks’s testimony was hearsay and that the relevant portions were not
ruled inadmissible.        However, the district court’s opinion clearly excludes
Banks’s statement that Higbie was prohibited from speaking to Consular
Affairs employees. Accordingly, we cannot consider Banks’s testimony.
      Higbie next argues that the move itself is sufficient to create a fact issue
as to whether his liaison duties were stripped. In his deposition, Taliaferro
explained that his decision to relocate Higbie did not impact Higbie’s liaison
duties. Furthermore, Stubblefield explained in his deposition that the fact that
an agent’s office was located in space also occupied by Consular Affairs did not
afford that agent any “extra duties.” Higbie has failed to introduce evidence of
what his duties as liaison actually entailed and how the move impacted these
duties.     The title of “liaison” does not suggest that an employee’s duties
inherently relate to his physical location. 35 Accordingly, the mere fact that
Higbie was moved to a different floor does not create a fact issue as to whether
his liaison duties were stripped.
                                      *        *         *
      For the foregoing reasons, we AFFIRM the judgment of the district court.




      33   See Kanida v. Gulf Coast Med. Pers. LP, 363 F.3d 568, 582 (5th Cir. 2004).
      34   Audler v. CBC Innovis Inc., 519 F.3d 239, 255 (5th Cir. 2008).
      35  See BRYAN A. GARNER, GARNER’S MODERN AMERICAN USAGE 510 (3d ed. 2009)
(defining “liaison” as “acting as an intermediary”).
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