     Case: 17-30813      Document: 00514535789         Page: 1    Date Filed: 06/29/2018




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

                                    No. 17-30813
                                                                              Fifth Circuit

                                                                            FILED
                                  Summary Calendar                      June 29, 2018
                                                                       Lyle W. Cayce
BRENDA GANHEART,                                                            Clerk


       Plaintiff–Appellant,

v.

CHARLES BROWN; ELIZABETH ROBINS; NEW ORLEANS CITY,

       Defendants–Appellees.


                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                              USDC No. 2:17-CV-43


Before JOLLY, OWEN, and HAYNES, Circuit Judges.
PER CURIAM: *
       Brenda Ganheart is an employee at the New Orleans Public Library (the
Library). She brought this suit against Charles Brown, Elizabeth Robins, and
New Orleans City (collectively, the City), alleging violations of Title VII of the
Civil Rights Act and the Due Process Clause based on various employment
actions she alleges City personnel took against her. The district court twice
granted the City’s motion to dismiss for failure to state a claim. 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 17-30813     Document: 00514535789    Page: 2   Date Filed: 06/29/2018


                                 No. 17-30813

                                        I
      Ganheart, an African-American woman, has been an employee of the
Library since 2008. She alleges that in 2014 she began raising complaints to
her supervisors regarding discriminatory staffing practices. In April 2014,
Ganheart responded to a complaint by a co-worker about her job performance
with an email, circulated to several co-workers, which again criticized the
Library’s staffing practices.
      Ganheart was demoted in May 2014.          She alleges that in her new
position she was placed under “micro-management and surveillance” by her
white supervisor. This supervisor allegedly refused to intervene in disputes,
shared with Ganheart “her view point when she perceived that [Ganheart] was
at fault,” and stripped Ganheart of various job duties. Ganheart also alleges
that another “[w]hite and former subordinate” co-worker “constantly interfered
with [Ganheart’s] instructions to the staff regarding duties” and “t[old her] and
other staff members that [Ganheart] could not tell [the staff] what to do
because [she] was not their supervisor.” In August 2014, Ganheart filed a
harassment complaint about this co-worker.
      In September 2014, Ganheart received a letter of reprimand from
Library Director Charles Brown regarding work performance. She filed an
appeal with the New Orleans Civil Service Commission. During the course of
that appeal, Ganheart claims that the City was unresponsive to document
requests. The Library withdrew the letter of reprimand, replaced it with a
written warning, and the Civil Service Commission granted the City’s motion
to dismiss the appeal as moot. Ganheart opposed the motion, claiming that
she never received the written warning and that no one from the City contacted
her about it.




                                       2
    Case: 17-30813    Document: 00514535789     Page: 3   Date Filed: 06/29/2018


                                 No. 17-30813

      Ganheart further alleges that in December 2014, her performance
evaluation rating was lowered from “Exceeds” to “Competent.” She alleges
that she had previously received “Exceeds” ratings but that her evaluator in
this instance maintained a policy “that no one should be rated higher tha[n]
Competent.”
      In April 2015, Ganheart claims that the Library’s white Human
Resources Director issued a written warning to her following a complaint
raised by a white co-worker with whom Ganheart had argued over the phone.
The HR Director told Ganheart that several other complaints had been lodged
against her. Her supervisor then instructed her “to refer all conflicts involving
personnel from other branches to her [supervisor’s] attention” and “not to
engage in a difference of opinion.”
      In November 2015, Ganheart filed a charge with the Louisiana
Commission on Human Rights and the Equal Employment Opportunity
Commission (EEOC). The charge took issue with her 2014 demotion, the
treatment she experienced at the hands of her new supervisor and co-worker,
the reprimand letter, the 2014 performance review, and the 2015 resolution of
the various complaints filed against her. Ganheart asserted that the most
recent incident of discriminatory conduct took place in July 2015 and that such
conduct was not a “continuing action.” She received a statutory Notice of Right
to Sue letter (Notice) from the EEOC on October 3, 2016.
      Ganheart alleges that she was again demoted in 2016 and that her
former position was filled by a white employee. She then filed this pro se suit
on January 3, 2017. The district court construed Ganheart’s pleadings as
raising five claims: three retaliation claims—one related to her 2014
reprimand and demotion, one to her performance evaluation, and one to her
2016 demotion; a hostile work environment claim; and a procedural due



                                       3
     Case: 17-30813       Document: 00514535789          Page: 4     Date Filed: 06/29/2018


                                       No. 17-30813

process claim related to the Civil Service appeals process. The district court
dismissed the 2014 retaliation claim with prejudice and dismissed all other
claims without prejudice.          Ganheart filed a new complaint re-raising her
remaining claims. The district court dismissed these claims with prejudice,
with the exception of Ganheart’s 2016 demotion retaliation claim, which was
dismissed without prejudice to give Ganheart an opportunity to pursue her
administrative remedies. Ganheart appealed. We have jurisdiction over this
appeal under 28 U.S.C. § 1291. 1
                                              II
       We review a district court’s dismissal for failure to state a claim de novo. 2
To survive a Rule 12(b)(6) motion, the plaintiff must “plead[] factual content
that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” 3           “[P]ro se complaints are held to less
stringent standards than formal pleadings drafted by lawyers” 4 but are
nonetheless insufficient if they contain “only ‘labels and conclusions,’ or ‘a
formulaic recitation of the elements of a cause of action.’” 5 We can affirm a
12(b)(6) dismissal “on any basis supported by the record.” 6



       1  See United States v. Wallace & Tiernan Co., 336 U.S. 793, 794 n.1 (1949) (“That the
dismissal was without prejudice to filing another suit does not make the cause unappealable,
for denial of relief and dismissal of the case ended this suit so far as the District Court was
concerned.”); 16 Front St., LLC v. Miss. Silicon, LLC, 886 F.3d 549, 561 (5th Cir. 2018); Linn
v. Chivatero, 714 F.2d 1278, 1280 (5th Cir. 1983) (“To say that [appellant] may bring a
different action in the future is not to say that this action was not fully and finally disposed
of below.”); see also Goode v. Central Va. Legal Aid Soc'y, Inc., 807 F.3d 619, 625 (4th Cir.
2015) (stating that appellate jurisdiction exists over a dismissal without prejudice when the
district court “clearly indicate[s] that no amendment could cure the defects in the complaint”).
        2 Lincoln v. Turner, 874 F.3d 833, 839 (5th Cir. 2017).
        3 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
        4 Calhoun v. Hargrove, 312 F.3d 730, 733 (5th Cir. 2002) (quoting Taylor v. Books A

Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002)).
        5 Whitley v. Hanna, 726 F.3d 631, 638 (5th Cir. 2013) (quoting Iqbal, 556 U.S. at 678).
        6 Taylor v. City of Shreveport, 798 F.3d 276, 279 (5th Cir. 2015) (quoting Asadi v. GE

Energy (USA), LLC, 720 F.3d 620, 622 (5th Cir. 2013)).


                                               4
     Case: 17-30813       Document: 00514535789          Page: 5     Date Filed: 06/29/2018


                                       No. 17-30813

                                             III
       “Employment discrimination plaintiffs must exhaust administrative
remedies” by “fil[ing] a timely charge with the EEOC and receiv[ing] a
statutory notice of right to sue” “before pursuing claims in federal court.” 7
After exhaustion, to state a prima facie claim for retaliation under Title VII a
plaintiff must allege 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 adverse
employment action.” 8
       Title VII prohibits, among other things, employment discrimination on
the basis of race and gender. 9          Participation in a Title VII proceeding is
“protected by Title VII,” as is voicing opposition to an employment practice the
employee reasonably believed was unlawful under Title VII. 10 An employment
action is “adverse” if it is objectively “harmful to the point that [it] could well
dissuade a reasonable worker from making or supporting a charge of
discrimination.” 11 As to causation, “temporal proximity alone, when very close,
can in some instances establish a prima facie case of retaliation,” 12 but the
plaintiff must show that her participation in a protected activity was a but-for
cause of the adverse action. 13




       7 Books A Million, 296 F.3d at 378-79.
       8 McCoy v. City of Shreveport, 492 F.3d 551, 556-57 (5th Cir. 2007).
       9 See 42 U.S.C. § 2000e-2(a)(1).
       10 Long v. Eastfield Coll., 88 F.3d 300, 304 (5th Cir. 1996).
       11 Porter v. Houma Terrebonne Hous. Auth. Bd. of Comm’rs, 810 F.3d 940, 945 (5th

Cir. 2015) (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006))
(alteration in original).
       12 Strong v. Univ. Healthcare Sys., LLC, 482 F.3d 802, 808 (5th Cir. 2007) (citing Clark

Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001) (per curiam)) (emphasis omitted).
       13 Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 360 (2013).




                                              5
     Case: 17-30813       Document: 00514535789          Page: 6     Date Filed: 06/29/2018


                                       No. 17-30813

                                              A
       The district court properly dismissed Ganheart’s retaliation claim
related to her 2014 reprimand and demotion because she did not exhaust
administrative remedies. An EEOC charge is timely when it is filed “within
three hundred days after the alleged unlawful employment practice
occurred.” 14 Ganheart was allegedly demoted in May 2014 and received a
reprimand letter in September 2014. Both events occurred more than 300 days
before Ganheart filed her EEOC charge in November 2015. The charge is
therefore not timely as to this claim. 15            Ganheart has not exhausted her
administrative remedies and dismissal was proper. 16
                                              B
       The district court properly dismissed Ganheart’s retaliation claim
related to her performance evaluation. As an initial matter, we disagree with
the district court’s conclusion that Ganheart did not engage in any protected
activities before the performance evaluation.                Ganheart alleges that she
complained of staffing “bias” in March 2014, circulated an email criticizing
discriminatory hiring practices in April 2014, and “expressed [her] concerns
regarding equal and fair treatment” “[a]t some point in 2014.” Because these
concerns relate to race and gender equality in the workplace, Ganheart’s
apparent belief that the Library’s practices were unlawful was reasonable. Her
statements in opposition to them were therefore protected activities. 17



       14  42 U.S.C. § 2000e-5(e)(1) (explaining that the time period is 300 days where, as
here, “the person aggrieved has initially instituted proceedings with a State or local agency”).
        15 See id.
        16 See Taylor v. Books A Million, Inc., 296 F.3d 376, 378-79 (5th Cir. 2002).
        17 See Long v. Eastfield Coll., 88 F.3d 300, 304 (5th Cir. 1996) (holding that

“oppos[ing]” any practice that the employee reasonably believes to be prohibited by Title VII
is protected activity under that statue (quoting 42 U.S.C. § 2000e-3(a))); see also Crawford v.
Metro. Gov’t of Nashville & Davidson Cty., Tenn., 555 U.S. 271, 276 (2009) (holding that the
statutory term “oppose” “carries its ordinary meaning”).


                                               6
     Case: 17-30813       Document: 00514535789         Page: 7    Date Filed: 06/29/2018


                                      No. 17-30813

       However, we agree with the district court that Ganheart has not alleged
that she suffered an adverse employment action. She claims that her final
evaluator lowered her initial rating of “Exceeds” to “Competent.” She also
states that this particular evaluator had a “policy [] that no one should be rated
higher tha[n] Competent.” The mere application of that policy to Ganheart’s
performance review would not “dissuade a reasonable worker from making or
supporting a charge of discrimination.” 18 The performance evaluation was not
an adverse employment action, and Ganheart cannot make out a prima facie
retaliation claim based on it.
                                             C
       Dismissal of the retaliation claim related to the 2016 demotion was also
proper. Ganheart’s EEOC charge describes only misconduct alleged to have
occurred in 2014 and 2015. Ganheart argues that this second “demotion fell
under the umbrella of” the charge. However, her EEOC charge specifically
states that the “[l]atest” date on which the “discrimination took place” was July
15, 2015 and that the discrimination was not a “continuing action.”
       “The scope of inquiry of a court hearing in a Title VII action ‘is limited to
the “scope” of the EEOC investigation which can reasonably be expected to
grow out of a charge of discrimination.’” 19               We have deemed a claim
unexhausted when the incident from which it arose was not alleged in the
EEOC charge. 20 Similarly here, Ganheart complains of a separate, subsequent
demotion that, based on her indication that the Library’s actions were not
“continuing,” could not reasonably be expected to become a part of the EEOC’s



       18 Porter v. Houma Terrebonne Hous. Auth. Bd. of Comm’rs, 810 F.3d 940, 945 (5th
Cir. 2015) (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006)).
       19 Young v. City of Hous., Tex., 906 F.2d 177, 179 (5th Cir. 1990) (quoting Sanchez v.

Standard Brands, 431 F.2d 455, 466 (5th Cir. 1970)).
       20 See Fine v. GAF Chem. Co., 995 F.2d 576, 577-78 (5th Cir. 1993).




                                             7
     Case: 17-30813           Document: 00514535789         Page: 8     Date Filed: 06/29/2018


                                          No. 17-30813

investigation into her charge. Ganheart has not exhausted administrative
remedies with respect to this claim.
       Even if the claim were exhausted, Ganheart has failed to make out a
prima facie case based on it. The last protected activity in which Ganheart
engaged was the filing of an EEOC charge in November 2015. 21 The demotion
occurred five months later. Ganheart alleges no facts showing that any of her
protected activities were a but-for cause of the demotion, and a five-month
interval between a protected activity and an adverse employment consequence
is too long to sustain a prima facie claim of causation based solely on temporal
proximity. 22
                                                 D
       The district court did not address Ganheart’s allegation that she received
a written warning in April 2015 in response to a complaint leveled against her
by a co-worker and verbal notice of other complaints filed against her. To the
extent that it may form the basis of an independent retaliation claim the record
is sufficiently developed to affirm the district court’s dismissal of it. 23 Even
assuming that this warning constituted an adverse employment action,
Ganheart alleges no facts tending to show that her complaints lodged in 2014
were a but-for cause of this April 2015 warning. 24 Further, the significant time
that elapsed between the protected activities and the warning is not “very
close” temporal proximity on which she could rely to establish a prima facie



       21    See Long, 88 F.3d at 304 (holding that making a charge under Title VII is a protected
activity).
       22 See Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001) (per curiam) (citing
with approval cases holding that three- and four-month intervals are insufficient to establish
causation by temporal proximity); Strong v. Univ. Healthcare Sys., LLC, 482 F.3d 802, 808
(5th Cir. 2007).
       23 See Taylor v. City of Shreveport, 798 F.3d 276, 279 (5th Cir. 2015) (holding that this

court can affirm a 12(b)(6) dismissal “on any basis supported by the record”).
       24 See Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 360 (2013).




                                                  8
     Case: 17-30813       Document: 00514535789          Page: 9     Date Filed: 06/29/2018


                                       No. 17-30813

case. 25 The complaint does not plausibly allege a claim for retaliation on which
relief could be granted. 26
                                              IV
       Ganheart exhausted her administrative remedies regarding her hostile
work environment claim by including the substance of her allegations in the
EEOC charge. 27 To set forth a hostile work environment claim Ganheart must
also establish, at a minimum, that “the harassment complained of was based
on race” or gender and that it “affected a term, condition, or privilege of
employment.” 28
       Ganheart’s pleadings provide no basis on which we could conclude that
any harassment she experienced was “based on” race or gender. Ganheart
alleges that she was “micromanaged,” criticized by co-workers and her
supervisor, and told that there were complaints filed against her. However,
none of these comments or incidents invoked Ganheart’s race or gender and,
beyond conclusory allegations of mistreatment of other African-American
employees, Ganheart provides no explanation of how the alleged harassment
could be even implicitly tied to race or gender.
                                              V
       Ganheart’s procedural due process claim involves balancing Ganheart’s
interest in, and risk of erroneous depravation from, the procedures employed
by the City against the City’s interest in avoiding additional procedures. 29
Ganheart’s pleadings do not plausibly allege sufficient factual content for us to


       25 See Breeden, 532 U.S. at 273; Strong, 482 F.3d at 808.
       26 See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
       27 See Celestine v. Petroleos de Venezuella SA, 266 F.3d 343, 351 (5th Cir. 2001) (noting

that a hostile work environment plaintiff must exhaust administrative remedies with the
EEOC before filing suit), abrogated on other grounds by Nat’l R.R. Passenger Corp. v. Morgan,
536 U.S. 101 (2002).
       28 Ramsey v. Henderson, 286 F.3d 264, 268 (5th Cir. 2002).
       29 See Mathews v. Eldridge, 424 U.S. 319, 335 (1976).




                                               9
   Case: 17-30813          Document: 00514535789          Page: 10    Date Filed: 06/29/2018


                                           No. 17-30813

grant relief on her claim. 30 She alleges only that on two unspecified occasions
she was denied access to requested documents and that she did not receive the
City’s motion to dismiss her reprimand letter appeal before the Civil Service
Commission. Because these facts alone provide us with no basis on which to
weigh the constitutionality of the procedures employed by the Civil Service
Commission, her claim amounts only to a “‘naked assertion[]’” of a due process
violation “devoid of ‘further factual enhancement.’” 31                 The district court
correctly dismissed it.
                                       *        *         *
      For these reasons, we AFFIRM the judgment of the district court.




      30   See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
      31   Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)).


                                               10
